BostonBarJournalJanuary/February 2008 A Publication of the Boston

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Impatient Millionaires: The Lottery Session in the Superior Court Massachusetts Guide to Evidence: Preliminary Reflections Impatient Millionaires: The Lottery Session in the Superior Court In-House Lawyers’ Bar Status: “Counsel, You’re Not in Kansas Anymore” MassachusettsInvoluntary Client Guide Relationships to Evidence: Preliminary Reflections

In-HouseDePeiza: SJCLawyers’ Affirms BarTerry Status: Stop “Counsel,Based on Police You’re Training Not in Kansasand Experience Anymore” Forming Involuntary Client Relationships DePeiza: SJC AffirmsTerry Stop Based on Police Training and Experience Federal Prosecutors and Advancement of Legal Defense Fees FormingRepresenting Involuntary Victims ofClient Domestic Relationships Violence Under M.G.L. Chapter 209A Federal Prosecutors and Advancement of Legal Defense Fees

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Volume 52, Number 1 January/February 2008 Contents President’s Page 2 Officers of the Boston Bar Association President, Anthony M. Doniger BBJ Editorial Policy 3 President-Elect, Kathy B. Weinman Vice President, John J. Regan Departments Treasurer, John H. Chu Secretary, Deborah S. Birnbach Voice of the Judiciary 4 Impatient Millionaires — The Lottery Session in the Superior Court Members of the Council By Paul A. Chernoff Mark M. Christopher Damon P. Hart Grace H. Lee R.J. Cinquegrana Brent L. Henry James D. Masterman Heads Up 6 Lisa M. Cukier Christine Hughes Samuel B. Moskowitz Massachusetts Guide to Evidence: Paul T. Dacier Julia Huston Rebecca B. Ransom Preliminary Reflections Laurie Flynn Sandra L. Jesse Vivian Tseng Lawrence M. Friedman Kimberly Y. Jones Charles E. Walker, Jr. By James J. Marcellino and Randolph M. Gioia Robert H. Kelley Mark J. Warner Kristin D. Casavant Lisa C. Goodheart Nina J. Kimball The Profession 8 Past Presidents In-House Lawyers’ Bar Status: Edward J. Barshak Joseph L. Kociubes John A. Perkins “Counsel, You’re Not in Kansas Joseph W. Bartlett Renée M. Landers Rudolph F. Pierce Anymore” John G. Brooks Edward P. Leibensperger Joel M. Reck By J. Charles Mokriski R.J. Cinquegrana William F. Looney, Jr. Richard W. Renehan John J. Curtin, Jr. Joan A. Lukey Lauren Stiller Rikleen Case Focus 11 Gene D. Dahmen Hon. James P. Lynch, Jr. Mary K. Ryan John P. Driscoll, Jr. Hon. Sandra L. Lynch Richard A. Soden DePeiza: SJC AffirmsTerry Stop Thomas E. Dwyer, Jr. James J. Marcellino Raymond H. Young Based on Police Training and Hugh R. Jones, Jr. Hon. Margaret H. Marshall Experience Michael B. Keating Edward I. Masterman By Michael Pelgro

Boston Bar Journal Board of Editors Bonnie Sashin, Editor Matthew C. Baltay Practice Tips 12 Aaron J. K. Ostrow, Associate Editor Manisha H. Bhatt Forming Involuntary Client Catherine F. Meeks, Cover Design Hon. Thomas Billings Relationships Madeleine Blake Lisa S. Burton By Paul Tremblay The Boston Bar Journal is published five times a year by Andrew L. Cohen the Boston Bar Association at 16 Beacon Street, Boston, Michael A. Collora Massachusetts 02108. Tel. (617) 742-0615. Articles Legal Analysis 14 Hon. William I. Cowin from the members of the Boston Bar Association are Hon. Judith Fabricant Federal Prosecutors and encouraged. Mail all correspondence to the Boston Bar Donald R. Frederico (Chair) Journal, 16 Beacon Street, Boston, MA 02108. Visit the Advancement of Legal Defense Hon. Mark V. Green Boston Bar Association at www.bostonbar.org. Articles Fees: Don’t Ask, Don’t Tell Joseph Halpern appearing in the Boston Bar Journal represent the Martin R. Healy By John J. Falvey, Jr. and views of their authors and do not necessarily carry the J. Allen Holland endorsement of the Association. Janet E. Taylor Kimberly Y. Jones ©2008 Boston Bar Association. Elizabeth Eunjoo Kim All rights reserved. Legal Analysis 18 Andrea Studley Knowles Paul G. Lannon, Jr. College and University Liability for Advertising inquiries: Hon. Peter M. Lauriat Student Deaths and Injuries Call (617) 778-1958. Michael K. Loucks By Daryl J. Lapp and John Loughnane Martha Ann Mazzone Mark R. Vernazza David A. McKay Mark F. Murphy Pro Bono Report 22 Timothy M. Murphy Representing Victims of Domestic Regina S. Rockefeller Violence Under M.G.L. Chapter 209A Hon. Janet L. Sanders Vivian Tseng By Lisa M. Hodes

BBA Update 23 BBF News 28

Boston Bar Journal • January/February 2008  President’s Page

By Anthony Doniger Alternative Justice

he Boston Bar Association has long existence. The court offers a GED program, a housing been on the front bench in the resource center, job training, substance abuse treatment and Tdebates about sentencing reform. other social services. Community service is often a large For over two decades we have encour- component of the sentences meted out there. Lest you think aged discussions about the strengths and this is just a liberal panacea, be assured that sentences in such weaknesses of the Commonwealth’s community courts often are tougher with respect to low-level criminal justice system, especially with crime, and the counseling/treatment alternatives usually last respect to sentencing reform and prisoner far, far longer than the time spent serving the applicable jail re-entry. We have called for the repeal of sentence. mandatory sentencing laws – particularly the harsh and ineffective drug mandatory Here is a true and quite typical story from Red Hook: a minimums. We have also encouraged the woman in her late 40s is arrested on a misdemeanor charge of establishment of an effective system of intermediate sanctions drug possession. She has had 74 prior arrests, almost all for in lieu of incarceration for nonviolent offenders, including low-level crimes related to her three decade-long drug providing improved parole options for nonviolent drug addiction. The current offense carries a maximum 90-day jail offenders to transition eligible candidates into the community sentence, and handled traditionally, she probably would serve and to save our overwhelmed prison resources for the violent no more than 30 days. Instead, she is sentenced to a detox and offenders who pose a real threat to society. rehabilitation program and to six months of intensive outpa- tient drug treatment. She successfully completes her mandate What we have not talked enough about, but should, are and is clean and sober for the first time in her adult life. She alternative approaches to dealing with non-violent offenders, gets a job with the assistance of employment counselors, and particularly in misdemeanor or low-level felony cases, that holds it. serve these same interests. The traditional response to such offenses is either a short-term jail sentence or “time served.” In addition to broad community justice models, there are Imagine, however, a court that could craft meaningful short- other more limited alternatives sometimes called problem- term sentences as an alternative to jail or no jail. How about solving justice programs that are offered within traditional sentencing such a defendant to a group counseling program court systems. For example, in response to studies showing for defendants with substance abuse problems; to a health that persons with mental illness are significantly overrepre- education program for prostitutes or johns; to individual sented in jails and prisons, the “mental health court” has counseling for defendants with mental health problems? Or, emerged. These courts typically have separate criminal for those defendants with more serious criminal histories or dockets for defendants with mental illness, divert defendants offenses, placement in a short- or long-term drug program, from incarceration into community-based mental health with participation monitored daily and regular court appear- treatment, and carefully monitor treatment and impose ances to measure progress. sanctions for non-compliance. Similarly, the problem of This approach is now a reality – nationally there are more prisoner re-entry is being constructively dealt with in some than 30 “community courts” that focus on quality-of-life jurisdictions by “prisoner re-entry courts,” with the goal of offenses such as drug possession, shoplifting, vandalism, and reducing prisoner recidivism and fostering a successful return low-level theft. These community courts combine punishment to the community. National statistics show that within 3 years and help by sentencing low-level offenders to perform visible of release, 68% of offenders are re-arrested and nearly half community restitution and to receive on-site social services, return to jail or prison for either a new crime or parole including drug treatment, individual counseling, and job violation. In response to such statistics, prisoner re-entry training. They have successfully increased engagement courts require collaboration between parole and treatment between the community and the courts, reduced crime, and agencies to help offenders deal with barriers to obtaining improved perception of neighborhood safety. The social employment, housing, medical and therapeutic treatment. services these courts offer are typically available to offenders Active and comprehensive oversight, swift sanctions for and non-offenders alike. violations of conditions, and incentives for attaining re-entry milestones are also provided. Such community justice models are often based on the Midtown (Manhattan) Community Court or on the Red Hook If the enhancement of public safety is a primary goal of our Community Justice Center, located in one of the poorest areas criminal justice system, we owe it to ourselves to pay attention of Brooklyn. The Red Hook Community Justice Center, which to these experiments in community and problem-solving has been the subject of a public television documentary and justice. Improving community attitudes towards our courts numerous articles and studies, is a hugely successful experi- and criminal justice system is an important byproduct of such ment in community justice designed to get at the root causes alternatives. Helping more individuals to reintegrate into of many of the community’s legal problems. It has helped low- society and stay out of the criminal justice system is both cost- level crime drop in the area by over 60% in the few years of its effective and unarguably the right thing to do. ■

 Boston Bar Journal • January/February 2008 Board of Editors

Donald R. Frederico (Chair) Matthew C. Baltay Manisha H. Bhatt Hon. Thomas Billings Madeleine Blake Lisa S. Burton Greenberg Traurig, LLP Foley Hoag LLP Greater Boston Legal Services Massachusetts Superior Court Greenberg Traurig, LLP Wilmer Cutler Pickering Hale and Dorr LLP

Andrew L. Cohen Michael A. Collora Hon. William I. Cowin Hon. Judith Fabricant Hon. Mark V. Green Joseph Halpern Committee for Public Counsel Services Dwyer & Collora, LLP Massachusetts Appeals Court Massachusetts Superior Court Massachusetts Appeals Court Blue Cross and Blue Shield of MA

Martin R. Healy J. Allen Holland Kimberly Y. Jones Elizabeth Eunjoo Kim, Andrea Studley Knowles Paul G. Lannon Goodwin Procter LLP Lynch Brewer Hoffman & Fink, LLP Foley Hoag LLP McDermott Will & Emery LLP Sugarman, Rogers, Barshak Holland & Knight LLP & Cohen, P.C.

Hon. Peter M. Lauriat Michael K. Loucks John Loughnane Martha Ann Mazzone David A. McKay Mark F. Murphy Massachusetts Superior Court U.S. Attorney’s Office McCarter & English, LLP Fidelity Investments FMR Corp Ropes & Gray LLP Wulsin Murphy LLP

Timothy M. Murphy Regina S. Rockefeller Hon. Janet Sanders Vivian Tseng Bromberg & Sunstein LLP Nixon Peabody LLP Massachusetts Superior Court Welch’s Statement of Editorial Policy The Boston Bar Journal is the premier publication of the Boston Bar Association. We present timely information, analysis, and opinions to more than 10,000 lawyers in nearly every practice area. Our authors are attorneys, judges, and others interested in the development of the law. Our articles are practical. Our publication is a must-read for lawyers who value being well informed on important matters of legal interest. The Boston Bar Journal is governed by a volunteer Board of Editors dedicated to publish- ing outstanding articles that reflect their authors’ independent thought, and not necessarily the views of the Board. N.B. Judges serving on the Board of Editors of the Boston Bar Journal do not participate in discussions about or otherwise con- tribute to articles regarding impending or pending cases.

Boston Bar Journal • January/February 2008  Voice of the Judiciary

By Judge Paul A. Chernoff

Impatient Millionaires: The Lottery Session in the Superior Court

n adoption approval cases in the Probate and out in bold type: the payments being assigned, the Family Court, happy parents look and feel like payment amounts and payment dates, the purchase Ithey have won the lottery. Real lottery winners price being paid, the discount rate to present value, sometimes must also go to court to collect their and the amount of fees or charges up to and prize. including the closing. The assignor is informed that delinquent child support and state tax liabilities About 150 people each year win $1,000,000 or must be paid by the closing and that the lottery’s more in the State Lottery where winnings are paid only obligation will be to pay the assignee what has out over 20 years or more. Some winners may prefer The Honorable been assigned. The assignee must pay the commis- to receive the money up front. They must seek Paul A. Chernoff sion an administrative fee, usually amounting to Superior Court approval to assign future payments has served as $1,000. an Associate to a finance company in return for a “present value” Justice of the payment. What follows is a view of the law, process, Most winners accept the payments over 20 years. Superior Court and the experience of some of the millionaires from Several, however, go to court for approval of an since 1985. the perspective of a non-millionaire in the court- assignment once, twice or even three times. The He was previ- room — the judge. assignor must personally appear unless there is a ously Presiding hardship where the court may substitute a video Justice of the In many states new winners can elect to receive Newton District deposition, telephonic testimony, or an affidavit. the entire prize in a lump sum without court Court and The assignee finance company, approved by the approval. Massachusetts requires a process aimed Chairman of the lottery commission, is represented by counsel while Massachusetts at ensuring that outstanding child support and tax fewer than 10% of the winners appear with an Parole Board. obligations are satisfied from the winnings and that attorney (one finance company requires it). An winners are protected from inappropriately aggres- attorney for the lottery commission also files an sive finance companies. Effective in 2004, Mas- appearance and informs the court of instances sachusetts General Laws Chapter 10, §28, provides where the commission has reservations about a the sole vehicle for assigning future prize payments. particular assignment. Lottery counsel focuses on The written assignment must be approved by the consumer protection issues, not the reasons for the Superior Court where the assignor resides or in assignment. In a recent hearing, lottery counsel Norfolk County where the lottery commission is questioned whether a financial advisor at a bank, situated and most hearings are held. In all lottery where the assignee was a bank customer, was assignment cases, the judge must find that the indeed “independent.” The person soon retained assignor is of sound mind, not acting under duress, another advisor and the assignment was approved. and has received advice from an independent attorney and a certified financial planner, neither of I have presided over approximately 75 lottery whom is associated with the finance company. hearings where winnings were between one million Finance companies are discouraged from providing and ten million dollars. Winning the lottery or winners with names of attorneys and financial approval of early payments might be expected to planners. The judge asks a set of questions regard- evoke smiles, but few — if any — of the millionaire ing drugs, alcohol, gambling and mental health. winners appear particularly happy, although they do The judge must be satisfied that, when the assign- look determined. The “number crunching” that ment contract was executed, the assignor was leads to the actual bottom line “present value” is provided with a written disclosure statement setting daunting. The percentage depends on the discount

 Boston Bar Journal • January/February 2008 rate and how far out the assigned payments are. Taxes substantial credit card debt and, occasionally, a car loan. A few withheld from payments are refunded to the assignee after 18 people want to buy investment or vacation property in north- months. This “lag” can further reduce present value. The ern New England or Florida. Two winners have set up invest- discount rate fluctuates with market conditions and is some- ment trusts that are in need of funding. An already financially what negotiable if one canvasses the finance companies. With a secure person wanted to reinvest in a much longer term discount rate between seven and 15%, the present value of annuity. No one has yet suggested a favorite charity or cause. money in 20 years ranges from five to 25 cents on the dollar, In a particularly poignant case, a woman won $10,000,000 in whereas that of money due in two years is 70 to 85 cents on the 1992 and died in 2004 leaving four young children and her dollar. Last year, a $5,000,000 winner assigned the $1,000,000 in severely disabled husband suffering from MS. I approved the payments for years 17 through 20. He received less than “lump summing” of 60% of payments for the four remaining $200,000 which, after taxes, amounted to under $140,000. years. It is not for me to question the wisdom of a decision to assign future winnings, but sometimes I have to restrain Although not required by statute, I ask each person why it is, myself from giving fatherly advice. with such a reduced present value, that they desire to “lump sum” future payments. I receive very few compelling reasons. So, is the Lottery Session of the Superior Court really a Only twice did I hear that the money would pay for the “happy” session? Even though few are smiling, I think it is. But education of a child or grandchild. One man, over 70 years old, the Probate and Family Court adoption cases have us beat. ■ wanted to spend the money while he was healthy. The most ______compelling was one who intended to help his mother who was dependent on Social Security. The younger set of millionaires, Thanks to interns Andrew Lynch and Elizabeth Goldman. those under 35 years old, generally want the money to pay off

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Boston Bar Journal • January/February 2008  -, Ê Ê` ΰx»ÊÝÊ{°Çx» Heads Up

By James J. Marcellino and Kristin D. Casavant

Massachusetts Guide To Evidence: Preliminary Reflections

hen call them to our presence – face-to-face, and frowning brow to brow, ourselves will hear T the accuser and the accused freely speak. William Shakespeare, “Richard II,” Act I, Scene I.

n our common law tradition, we favor what In a Note to Section 102 (Purpose and might be labeled the combative ordering of Construction), the Advisory Committee Ijustice, where competing parties seek to explained that the sections contained in the prove to the fact finder their respective versions Guidelines are not being adopted as rules of of the truth. The parties must do so in an evidence and that, as a result, the development orderly way that ensures that the admission or of Massachusetts evidence law will continue to exclusion of evidence faithfully reflects the legal be based on the common law and legislative James J. Marcellino, of Hanify & King, is a tradition and, to the extent possible, produces a process. Fellow of the American fair and just result to the trial. These goals are College of Trial The proposed Guidelines “summarize the law Lawyers and a past- achievable, however, only if the lawyers know of evidence applied in proceedings in the courts President of the Boston the correct evidentiary standards to be applied. Bar Association. of the Commonwealth of Massachusetts” by The Massachusetts Guide to Evidence, in incorporating, in varying degrees, the United preliminary draft form, was published for States and Massachusetts Constitutions, comment in August of 2007. Associate Justice Massachusetts General Laws, Massachusetts Marc Kantrowitz of the Appeals Court, in his case law, Massachusetts existing and proposed cover letter, notes that the mandate from the rules of court, and federal rules of court. A few Supreme Judicial Court to the Advisory Com- aspects of the Guidelines deserve mention. mittee was: Kristin D. Casavant is Section 103 (Rulings on Evidence, Objections, an associate of Hanify to assemble the current law in one easily and Offers of Proof) incorporates Massachu- & King specializing in business litigation, and usable document, along the lines of the setts law to demonstrate what has to be done at is a member of the Federal Rules of Evidence, rather than to trial to preserve a client’s rights on appeal. The Boston Bar Association. prepare a Restatement or to propose appended Note lays out the specific Massachu- changes in the existing law of evidence.

 Boston Bar Journal • January/February 2008 setts statute from which it is derived, with numerous citations relevant field, it specifically states that Massachusetts has not to Massachusetts cases and rules of court. Notably, Section 103 fully adopted either. does not rely on any federal precedent. The law of evidence in Massachusetts is becoming increas- Similarly, Section 1101 (Applicability of Evidentiary Sections) ingly complex, evidenced by the varying interplay among is very closely tied to Massachusetts precedent, relying upon sources of support for each different Guideline. Newly minted numerous Massachusetts cases, as well as Massachusetts lawyers must accumulate in-court trial experience over an statutes and rules of court. With few exceptions, it makes the extended period of years before grasping the nuances of the Guidelines applicable to “all actions and proceedings in the rules of evidence. Seasoned lawyers, on the other end of the courts of the Commonwealth” but certain proceedings, spectrum, may recall the “pray your honor’s judgment” objec- including 209A restraining order hearings, and grand jury and tion, used years ago in Massachusetts by trial counsel when bar discipline proceedings, are excluded. they did not know what specific objection to assert. Fortunately, if adopted, the Guidelines will inform all lawyers, no matter the Section 802 (Hearsay Rule) relies only on Massachusetts length of their trial experiences, of the essentials of Massachu- law; it simply states: setts rules of evidence. ■ Hearsay is generally inadmissible unless it falls within an exception to the hearsay rule as provided by case law, statute, or rule prescribed by the Supreme Judicial Court.

The related Note lists many of the Massachusetts statutes and rules of court providing exceptions to the hearsay rule, but unlike the corresponding Federal Rule of Evidence, there is no catch-all exception. Section 803 (Hearsay Exceptions; Avail- ability of Declarant Immaterial) likewise relies only on Mas- sachusetts precedent, yet mirrors the corresponding Federal Rule of Evidence. Its Note gathers Massachusetts cases and statutes in support of the federal exceptions that Massachu- setts recognizes and specifically highlights the federal excep- tions that Massachusetts does not recognize. Additionally, that Note indicates the federal exceptions for which no Massachu- setts cases or statutes exist.

Section 703, regarding the Basis of Opinion Testimony by Experts, utilizes both state and federal precedent. It allows experts to utilize facts or data perceived by or made known to the expert at or before the hearing in forming an opinion or inference. Although the corresponding Note indicates that the Guideline relies on Fed. R. Evid. 703 and Proposed Mass. R. Evid. 703, both of which permit opinions based on inadmissible evidence of a type reasonably relied on by experts in the

Boston Bar Journal • January/February 2008  The Profession

By J. Charles Mokriski

In-House Lawyers’ Bar Status: “Counsel, You’re Not in Kansas Anymore”

ith all the things that a company’s have sent numerous in-house lawyers — those general counsel has to worry about, who had commenced their legal careers by Wbeing accused of practicing law without taking the bar examination in some other state a license should not be one of them. But what and subsequently relocated to Massachusetts — happens when a partner of a New York law firm scurrying to the Board of Bar Examiners to pick is hired as general counsel of a company up applications to sit for the Massachusetts bar headquartered in Waltham? Or when an in-house exam, or, if they qualified, to apply for admission lawyer with extensive educational background on motion without exam. And woe to the Spanish- J. Charles Mokriski is a partner at and legal experience in international business trained and admitted lawyer if her Spanish Day Pitney LLP, transactions is transferred from her company’s university and legal education did not comply President-elect of office in Barcelona to its office in Boston? Both with the BBE’s requirements to even sit for the the Association of these lawyers may have been duly admitted bar exam. of Professional Responsibility and in good standing in the New York and Spain, Lawyers (APRL) respectively, but once they stepped into their The SJC to the Rescue — “Safe Harbor” and a member of new offices in Massachusetts and began to for Some (but not all) In-House Counsel the Massachusetts Board of Bar advise and represent their companies with In December, 2006, the Supreme Judicial Overseers. He respect to the same kinds of issues they dealt Court adopted Rule 5.5 of the American Bar teaches profession- with in their states of admission, did they Association’s Model Rules of Professional al responsibility at become outlaws, guilty of UPL, the unauthorized Conduct, conferring amnesty, legitimacy, and BC Law School and BU School of Law. practice of law? peace of mind on many Massachusetts in-house He is a former lawyers. The new rule, effective January 1, 2007, This issue has bedeviled scrupulous in-house chair of the BBA’s speaks to a number of issues involving so-called Ethics Committee counsel around the country for many years. “Multi-Jurisdictional Practice” or MJP, but its and a former mem- Until late 2006, many lawyers working in most immediate effect was to address nagging ber of the Board Massachusetts for corporate employers were of Editors of the concerns that many lawyers working in the among the worried. A “don’t ask, don’t tell” Boston Bar Journal. Commonwealth for the legal departments of regime had prevailed in this and many other their corporate employers may have had about jurisdictions. Were lawyers working for the legal their lack of admission to the Massachusetts bar. department of a large company engaged in the Unfortunately, while the new rule was a major practice of law? The question went for the most step forward in recognizing and dealing with the part unasked because one possible answer would

 Boston Bar Journal • January/February 2008 reality of MJP, it left one serious problem unresolved and For a state seeking to attract multi-national companies to exacerbated it. come here and establish headquarters or major facilities that create jobs and tax revenues, this problem is a public relations Subsection (d) of new Rule 5.5 provides as follows: nightmare. Massachusetts, a major participant in and benefi- (d) A lawyer admitted in another United States jurisdiction, ciary of international commerce, should be the last state to and not disbarred or suspended from practice in any succumb to the chauvinistic and parochial view that lawyers jurisdiction, may provide legal services in this jurisdiction educated and admitted to practice in Paris, London or New that: Delhi should not have their status and qualifications respected within our borders. (1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which Some have said that this is a problem that should be the forum requires pro hac vice admission; or resolved at the international level, among negotiators involved in discussions concerning the General Agreement on Trade in (2) are services that the lawyer is authorized to Services. “In the long run,” they say, GATS will address these provide by federal law or other law of this jurisdiction. problems in a global resolution of issues relating to interna- This subsection creates a “safe harbor” from claims of UPL tional commerce in all professional services. Unfortunately, for in-house lawyers not admitted in the Commonwealth but GATS is moving at a glacial pace, and, as John Maynard admitted and in good standing in another U.S. jurisdiction. The Keynes mordantly observed, “In the long run, we are all dead.” Rule is simple and straightforward, and does not require that Foreign accountants, architects, and engineers may be able to in-house counsel file any kind of application or registration endure the long run, since nothing prevents them from form to take advantage of it. However, the authorization working in-house for corporations without professional provided by Rule 5.5(d) does not encompass Massachusetts in- certification. Foreign admitted in-house lawyers, in contrast, house lawyers admitted only in foreign jurisdictions. Because need relief now. of Massachusetts’s international orientation and the numerous multi-national corporations headquartered or with major Are Foreign Admitted In-House Lawyers Qualified? facilities here, this failure to include foreign-admitted lawyers Corporate in-house lawyers who have been admitted in in this safe harbor is a source of considerable concern in the another jurisdiction, either in the U.S. or abroad, have already corridors of many of the corporate legal departments around been evaluated and investigated twice: first, by the jurisdiction the state. that admitted them, based upon its investigation and evaluation of their education, character, and fitness; and second, by their How Big is the Problem? employers, both by the legal departments in which they will be Although the magnitude of the problem in terms of the working, and by human resource departments, both of which number of affected lawyers is unclear, for those foreign- have strong incentives to do a thorough and diligent investiga- admitted lawyers who have been providing legal services to tion of their background, educational achievements, and their Massachusetts corporate employers for years and capabilities. decades, the problem is huge. Their exclusion from the A lawyer engaged wholly in international business transac- authorization provided by Rule 5.5(d), especially for those tions for a multi-national company may need a wholly different whose foreign educational credentials disqualify them from skill set from an attorney in general practice, and may very taking the Massachusetts bar exam or otherwise seeking full well be able to serve her client more ably thanks to education admission to the Massachusetts bar, is tantamount to an provided in civil code country than from a typical U.S. law employment termination notice imposed by the state. Or, to school. Given the global nature of many of Massachusetts’s the degree that the special skills and experience of these corporate businesses and the complexity of legal issues facing foreign trained and admitted lawyers make them invaluable to these companies, they need the flexibility to hire lawyers with their Massachusetts corporate employers, those employers will a broad range of legal educational backgrounds and expertise. work at crafting of job titles and descriptions that enable the Preventing them from tapping into the talent of foreign trained lawyers to continue advising their employers as “consultants” lawyers and those with broad international legal experience or “legal specialists” — expedients that the new, liberalized would put those companies and the state at a competitive MJP rules were intended to render obsolete. disadvantage in the world marketplace.

Boston Bar Journal • January/February 2008  In any event, executives at corporate employers are in a ments at risk of running afoul of the Rules. This spells better position to judge the qualifications of their own prospec- particular trouble for those companies’ general counsel and tive employees than the staff of a state administrative or judicial other lawyers with direct or indirect supervisory authority over agency or court. Besides, in-house lawyers are not holding in-house lawyers. Under Rule 5.1(a), they have an express themselves out and offering their services to a public that obligation to make reasonable efforts to ensure that supervised might rely on the Bar Examining Committee to check creden- lawyers comply with the Rules of Professional Conduct, tials, competence, and character. They are working for a single including those prohibiting UPL. client that has thoroughly vetted them prior to employing them. At this writing, 26 states have in-house counsel registration rules. Of these, three — Delaware, Washington, and Virginia Irony Creates Possible Headaches for General Counsel — expressly recognize and permit lawyers admitted only in The liberalization of Rule 5.5, regularizing and legitimizing in- foreign countries to register as in-house counsel. Another half house practice by unadmitted lawyers, may make untenable dozen states resolve the problem by statutory definition or the genteel fiction that formerly prevailed in the Common- court decision declaring that legal services provided by in- wealth that in-house lawyers are not really “practicing law.” The house lawyers do not constitute the practice of law. And an proposed new subsection (9) to Supreme Judicial Court Rule indeterminate number of the remaining states continue to 4:02, requiring the registration of in-house counsel, will operate in the limbo of “don’t ask, don’t tell.” It is an exquisite reinforce this development. As a result, the old regime of “don’t irony that the MJP reforms embodied in Rule 5.5, by leaving a ask, don’t tell” may well be over. Unless the proposed registra- small but significant class of lawyers out of their protections, tion rule and a companion change to Rule 5.5(d) enable in- will be encouraging the same kind of creative linguistics with house lawyers admitted only in foreign (non-U.S.) jurisdictions respect to job titles and descriptions that have been used in the to register as in-house counsel, law departments of some of the past to finesse bar admission requirements and enable unad- Commonwealth’s most important players on the world eco- mitted lawyers to fly under the radar screen. ■ nomic stage may soon find key members of their law depart-

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10 Boston Bar Journal • January/February 2008 Case Focus

By Michael Pelgro

DePeiza: SJC AffirmsTerry Stop Based on Police Training and Experience

any criminal prosecutions arise from side as if he were holding something. The officers, evidence recovered by police during each of whom had three years’ experience, Munplanned street encounters with testified that they had been trained to recognize a citizens. Such “threshold inquiries” or Terry stops distinctive “straight arm” gait as evidence that are standard investigative techniques employed someone was carrying a concealed firearm. by law enforcement after the Supreme Court’s Indeed, 10-15% of their 25 gun arrests in the decision in Terry v. Ohio, 392 U.S. 1 (1968). The previous eight months involved similar success of motions to suppress evidence recov- observations. ered from such encounters depends upon the Suspicious, the officers turned around their details of the encounter — what did the defendant unmarked cruiser and conversed with the Michael J. Pelgro do or say that aroused suspicion, what did the is Counsel at defendant, who was shielding his right side from police say to the defendant, how did they say it, Foley Hoag LLP in them, “as if trying to hide something.” Exiting how reasonable were their actions — and the Boston, where he their cruiser, they approached the defendant, who practices in the experience and credibility of the police officers. In was avoiding eye contact, looking from left to Business Crimes Commonwealth v. DePeiza, 449 Mass. 367 right and shifting his weight from side to side and Government (2007)(“DePeiza”), the SJC, while providing Investigations (signs of nervousness and intended flight, guidance on the reasonable suspicion required to Group. He spent according to the officers). As the defendant conduct a threshold inquiry, revealed an inclina- several years as reached into his pants pocket to produce identifi- a state and fed- tion to credit the training and experience of the cation, he turned his right side away in an eral prosecutor and police in their on-the-street assessment of a awkward motion but the officers observed was Chief of the defendant’s objectively neutral conduct. DePeiza something heavy in his right jacket pocket. After Organized Crime is a classic example of the fine lines that deter- Drug Enforcement the police announced an intent to frisk, the mine case outcomes and the importance of Task Force Unit at defendant jumped back and an officer grabbed determining whether there is back-up data to the U.S. Attorney’s the jacket pocket, felt the handle of a firearm, Office in Boston. support police conclusions about an area or an reached in, and pulled out a handgun. individual. The defendant’s motion to suppress was denied DePeiza involved an encounter between two and he was convicted of firearms offenses. The plain-clothes police officers and the defendant in Appeals Court vacated the conviction 2-1, holding Dorchester shortly after midnight on April 27, a Fourth Amendment “seizure” did not occur until 2005. The officers testified that the location was a the police declared their intent to frisk the “high crime” area where, on past occasions, shots defendant but that they lacked “reasonable were fired and arrests were made involving illegal suspicion” of criminal activity at that point. The handguns. They were patrolling the area because Court discounted the “high crime” nature of the of a recent increase in firearm violence. When the area and was not persuaded that the defendant’s officers saw the defendant, whom they did not manner of walking, together with the other know, walking on the sidewalk, they observed factors, “provided an objective factual basis for a him walking in an “odd” manner, holding his right reasonable suspicion that the defendant was arm stiff and straight, pressed against his right engaged in criminal activity.”

Continued on page 12

Boston Bar Journal • January/February 2008 11 Practice Tips

By Paul Tremblay

Forming Involuntary Client Relationships

magine: After you have addressed a group of firm about this potential case, you discover that a seniors at the Council on Aging about cutting- partner is already representing the lender in this Iedge elder law topics, a well-dressed woman very dispute. stands and tells you that her son prepared papers Are either of these women your client because of for her to sign that will transfer her family home these interactions? Would it matter if she is your into her son’s name to protect her against future client? nursing home obligations. She asks you whether Paul Tremblay is a she should sign the papers tomorrow. You tell her These questions have significant implications for Clinical Professor that she’s a wise and generous woman, and that’s lawyers. In light of a recent Massachusetts Bar at Boston College precisely what she should do. Of course, as you Association (MBA) ethics opinion and a Supreme Law School and a member of soon realize, your advice was terribly wrong, if only Judicial Court (SJC) advisory committee’s decision the BBA Ethics because it misunderstood how your state’s Medic- declining to adopt an American Bar Association Committee. aid rules work. (ABA) Model Rule covering this topic, lawyers in Massachusetts must be especially careful when Or imagine: Your e-mail this morning includes a interacting with persons who are not yet, but message from a local merchant. The merchant perhaps wish to be, formal clients. asks you to represent her in a commercial dispute with a local lender. The merchant doesn’t spare any Much turns on whether either woman is your details, including her frank thoughts about the client. If the well-dressed elder is your client, then lender and the dispute. When you ask around the you have committed serious malpractice, for which

Case Focus, continued from page 11 On further review, the SJC reinstated the conviction, agree- DePeiza illustrates that a police officer’s ability to articulate ing that the “seizure” did not occur until the police declared and explain his observations and actions in a credible manner their intent to conduct a frisk but holding that the police then can make the difference in the outcome. Prosecutors and possessed a reasonable suspicion of criminal activity. Because defense counsel, however, should request from police the back- the defendant’s conduct was consistent with non-criminal up data regarding the nature of the specific location in which behavior, the Court acknowledged the question was close but the stop occurred, the temporal proximity and similarity of ruled “[s]eemingly innocent activities taken together can give other crimes in that area, and the prior experiences of the rise to reasonable suspicion justifying a threshold inquiry.” In particular officer in relation to the observed conduct at issue. so holding, the Court accorded greater deference to police Under DePeiza, a properly-prepared officer’s training and testimony that the area had experienced “a recent increase in experience can carry the day but only if the Commonwealth incidents of firearm violence” and that police reaction to the lays a specific foundation supporting them. ■ defendant’s distinctive walk was proper because it “was not a mere hunch, but was the result of the application of their Case Focus provides a timely, in depth, expert review of a new experience and training at the police academy to their detailed decision — federal, state, administrative — of particular importance, observations of the defendant.” Unlike the Appeals Court, the or practice area specific. The analysis focuses on the impact on prior SJC found the defendant’s continuing effort to conceal his right case law or statutory interpretation, the complexities/gray areas of side from view gave rise to an actionable suspicion that his the opinion and what practitioners need to know about the effect probable possession of a firearm was unlawful rather than lawful. the opinion has on their practice.

12 Boston Bar Journal • January/February 2008 you may be liable. If the e-mailing merchant is your client, then If the merchant is a prospective client, and communicated you and your firm likely have a disqualifying conflict of interest, important information relating to your client the lender, then costing your firm an important client. you should be disqualified from representing the lender in its dispute with the merchant. Then, under Mass. R. Prof. C. 1.10, Two distinct questions arise: (1) how an attorney-client your entire firm is disqualified. Massachusetts does not permit relationship is formed in Massachusetts, and (2) how informa- screening to allow your partner to continue to represent the tion learned from a prospective client affects a lawyer’s duties lender after your disqualification. If the merchant shared only to that prospective client and to her other clients. unimportant information, then you should not be disqualified, according to the MBA opinion. See MBA Op. 2007-01. Forming an Attorney-Client Relationship An attorney-client relationship exists by implication “when A new ABA Model Rule would clarify the obligations of (1) a person seeks advice or assistance from an attorney, (2) lawyers interacting with prospective clients, but the SJC’s the advice or assistance sought pertains to matters within the Standing Advisory Committee on the Rules of Professional attorney’s professional competence, and (3) the attorney Conduct has opposed its adoption. Model Rule 1.18 disqualifies expressly or impliedly agrees to give or actually gives the from adverse representation only those lawyers who learn desired advice or assistance.” DeVaux v. Am. Home Assurance “significantly harmful information” from a prospective client, Co., 387 Mass. 814, 817-818 (1983). To prevent individuals from and excludes from the definition of “prospective clients” those becoming inadvertent “clients,” a lawyer must assure that who “unilaterally” communicate information to a lawyer. It conversations with potential clients do not amount to advice. would also permit a law firm to continue or accept the adverse The critical distinction will always turn on how specific and representation if the lawyer who learned the significantly tailored the information is. To avoid that risk in a situation such harmful information were screened from participation in the as a seminar, the lawyer must make clear in her remarks that case. It is a sensible rule that seems to be working well in other she is not providing individualized answers to any attendee’s jurisdictions. The SJC should adopt it. questions. See, e.g., D.C. Bar Legal Ethics Comm. Op. 316 (2002). Disclaimer Strategy The MBA opinion confirms that if your law firm’s website Information from Prospective Clients does not have adequate disclaimers, then the merchant could In the e-mail scenario, you have not formed an attorney- become your prospective client and disqualify you and your client relationship with the merchant, in light of DeVaux. You firm from representing the lender. Your disclaimer should have not offered any advice to the merchant. But you have inform the merchant that she cannot expect that information e- learned valuable information from an individual who might mailed to the firm will remain confidential, and that she cannot qualify as a prospective client. A lawyer owes a duty to protect assume that your firm will not oppose her on the matter. The information learned from a prospective client, even if that disclaimer should include a “clicked” assent before the sender person does not become an actual client. can transmit an e-mail to the law firm.See David Hricik, To Whom It May Concern: Using Disclaimers to Avoid Disqualifica- If you have “agreed to consider” the merchant as a possible tion by Receipt of Unsolicited E-Mail from Prospective Clients, 16 new client, then you must protect the information she com- Prof. Law. 1 (No. 3 2005). municates to you, according to a recent MBA ethics committee opinion, MBA Op. 2007-1. If you have not “agreed to consider” But there’s a danger that a blanket disclaimer may result in a her as a prospective client, then her unilateral sharing of waiver of the attorney-client privilege. Instead, you might say information with you was at her peril, and you have no obliga- that the person’s information may not be held confidential if tion to keep it secret. If your website invites prospective clients your firm does not accept the individual’s case, and that the to contact your firm, then the merchant ought to be deemed a firm’s review of the communication will not preclude the firm prospective client absent a clear disclaimer. With a clear from representing an opposing interest. ■ disclaimer, the merchant cannot expect confidentiality after her ______unilateral submission of information to you by e-mail. The author thanks Rachel Bussey (Northeastern Law) and Geoffrey Pickering (BC Law, 2008) for research assistance.

Boston Bar Journal • January/February 2008 13 Legal Analysis

By John J. Falvey, Jr. and Janet E. Taylor

Federal Prosecutors and Advancement of Legal Defense Fees: Don’t Ask, Don’t Tell

he last five years have seen a remarkable The Law and Policy on Fee Advancement sequence of federal prosecutors’ intrusion Fee advancement has long been recognized as T into and retreat from an area long consid- serving the interests of corporations and other ered a wholly private matter: whether a company employers: in the words of the Delaware Chan- should pay in advance for legal representation for cery Court, “[m]andatory advances, like indemni- its employees in the context of a government fication, serve the salutary purpose of investigation or litigation. Advancement of legal encouraging qualified persons to become or costs has traditionally been a quiet topic governed remain as directors of Delaware corporations, by Jack Falvey is a by a mix of state law, company bylaws, and (at assuring them, ex ante, that they may resist litigation part- times) contract. But in 2003, the Department of lawsuits that they consider meritless, free of the ner at Goodwin Procter LLP. He Justice (“DOJ”) inserted itself squarely into the burden of financing (at least initially) their own specializes in the discussion. It proclaimed it would consider an legal defense.”2 In the current era of complex defense of white organization’s advancement of fees on behalf of government investigations requiring substantial collar criminal and “culpable” employees in evaluating “the authentic- resources for defense, it is essential to organiza- other government ity of a corporation’s cooperation” with a federal tions that their employees and other agents are investigations and investigation. The most aggressive federal able to develop and argue their positions fully and is a former fed- eral prosecutor in prosecutors began to wield this new sword with a persuasively with regulators and prosecutors. Massachusetts. vengeance, pressing companies to cut off fees to Otherwise, employees might concede liability and their employees under investigation or face the seek the benefits of cooperation, leaving the risk of corporate prosecution. employer vicariously liable for employee conduct that might have been successfully defended. Members of the bar objected strenuously and Moreover, employers have to consider carefully publicly to this practice, but to no avail until the their ability to attract and retain high-quality courts spoke. Last year, in United States v. Stein1, employees: a company’s refusal to advance fees Judge Lewis Kaplan of the Southern District of could be expected to create a backlash in terms of New York came down hard on prosecutors’ employee retention and good will. overreaching on the fee advancement issue. In Janet Taylor is a Stein, the tax-shelter prosecution of KPMG tax Whether or not an employee has the right to litigation associate at partners and other professionals, Judge Kaplan the advancement of legal fees is governed, in the Goodwin Procter LLP. found that prosecutors, in effect, forced KPMG to first instance, by his or her employer’s charter or refuse to pay counsel fees incurred by its partners bylaws or by contract. Whether fees will be and employees – and in doing so, they had advanced while a proceeding is pending is distinct deprived the individual defendants of their due from the ultimate issue of indemnification. As to process rights and their right to counsel under indemnification rights, state corporate laws the Fifth and Sixth Amendments. DOJ has since establish an enabling rather than mandatory pulled back, to a degree, but justice would be well framework, permitting corporations to indemnify served if DOJ abandoned the issue altogether. their directors and employees. Most states, including Delaware, whose corporate law is most

14 Boston Bar Journal • January/February 2008 often involved, require an employee to meet the threshold innocence. There are certainly instances in which companies requirements of having “acted in good faith and in a manner have sufficient information early in an investigation to deny a the person reasonably believed to be in or not opposed to the request for fee advancement. But more often, neither the best interests of the corporation” and in a criminal matter, in a company nor the government knows at that stage the scope of manner that he or she did not reasonably believe to be unlaw- the problem under inquiry, the relative culpability of those ful.3 Corporate bylaws very often provide for indemnification of involved, or the facts that might establish an employee’s good directors and employees to the greatest extent permitted by faith. For every senior executive found to be guilty of criminal the law.4 As to fee advancement, Delaware and most other misconduct, there are dozens of corporate employees whom states allow broad discretion to corporations to advance fees prosecutors might believe to be “culpable” in the early stages during the pendency of a proceeding where they ultimately but who are not prosecuted as a result of an effective and believe indemnification may be appropriate, subject to the thorough defense effort. Yet the inevitable effect of DOJ’s requirement that the employee defendant undertake to repay emphasis on “authentic” cooperation is that companies face the corporation if the employee loses on the merits and is not tremendous pressure to put themselves in the best position entitled to the fees that were advanced.5 possible on all nine of the identified factors – including cutting off the advancement of fees to anyone the government might Delaware law strictly upholds a corporation’s obligation to claim to be “culpable.” advance fees where fee advancement is mandatory under the bylaws or by contract.6 Moreover, an employee or director The Constitutional Limits on Government Coercion: forced to sue the corporation in Delaware to enforce advance- United States v. Stein ment rights can typically require the employer to pay “fees on Last year, two rulings by Judge Kaplan in the KPMG tax- fees” – the fees incurred by the employee defendant to obtain shelter prosecution in the Southern District of New York the court order advancing fees.7 illustrated that DOJ had opened a Pandora’s Box by inviting (and arguably requiring) federal prosecutors to concern The Department of Justice’s New Focus on Fees themselves with whether a company was advancing legal fees. In January 2003, DOJ issued newly-revised corporate prosecution guidelines, the so-called Thompson Memorandum, The KPMG case is a paradigm of the massive modern whose “main focus…is increased emphasis on and scrutiny of federal prosecution. The charges involved highly complex tax the authenticity of a corporation’s cooperation.” The Thompson structures, unsettled areas of tax law, and ultimately 19 Memorandum identified nine factors that federal prosecutors defendants with varying degrees of involvement in the alleged were to consider in deciding whether to prosecute a corpora- scheme who had potentially conflicting defenses. The govern- tion. One of those factors was the corporation’s timely and ment produced 22 million pages of documents during discov- voluntary disclosure of wrongdoing and its willingness to ery and identified 150,000 pages of case-in-chief exhibits. Trial cooperate in the investigation. And one measure of the was anticipated to last six to eight months. “authenticity” of that cooperation – along with willingness to KPMG’s partnership agreement and bylaws were silent on waive the attorney-client privilege and participation in a joint fee advancement. But the firm had long followed a consistent defense agreement – was whether it advanced fees on behalf of practice of advancing fees to partners and employees in civil its “culpable” employees: “a corporation’s promise of support to and criminal matters arising from their actions within the scope culpable employees or agents…through the advancing of of their employment. In fact, in recent litigation involving attorneys’ fees…may be considered…in weighing the extent KPMG’s work for Xerox Corporation, KPMG had paid over $20 and value of a corporation’s cooperation.”8 million to defend four partners in civil and criminal matters. DOJ’s focus on fee advancement had obvious appeal from But mindful of the recent demise of Arthur Andersen LLP as a the standpoint of law enforcement: after all, why should result of its prosecution in the Enron fiasco, and in the wake of shareholders foot multimillion dollar legal bills for wealthy sharp negative publicity about the tax shelters in question, senior executives who had engaged in criminal misconduct? KPMG‘s outside counsel sought to chart a course of coopera- And why should government lawyers have to take on defense tion with the Manhattan US Attorney’s Office from the outset teams with seemingly endless resources to prove a corporate of the investigation. In their first meeting with KPMG’s outside fraud case? As Mr. Thompson was quoted as saying, employees counsel, federal prosecutors questioned counsel closely on “don’t need fancy legal representation” if they do not believe whether KPMG would advance fees in the absence of a legal they acted with criminal intent.9 Or put differently, only guilty obligation to do so, noting in that regard that “misconduct” people need expensive lawyers. should not “be rewarded” under the federal guidelines.10 KPMG soon decided to reverse its past practice. It refused to One fundamental problem with a prosecutor’s meddling in advance fees to any employee who did not cooperate with the fee-advancement questions is the impact on the presumption of

Boston Bar Journal • January/February 2008 15 government, and advised employees that it would cease contractual obligations cannot be considered a failure to advancement if the person was charged criminally. Moreover, cooperate.”13 it capped fees at $400,000 per defendant. As the investigation The Memorandum also included a limited procedural progressed, KMPG continued to make every effort to be found safeguard: before a U.S. Attorney may consider fee advance- cooperative: federal prosecutors advised it every time an ment in a charging decision, he or she must obtain approval employee refused to be interviewed, and KPMG duly re- from the Deputy Attorney General. But at the same time, the sponded by cutting off fees to and even terminating employees. Memorandum reinforced that DOJ considers it “appropriate” KPMG’s cooperation ultimately paid dividends, enabling it to for prosecutors to question company counsel concerning “how reach a deferred prosecution agreement with DOJ in 2005. and by whom attorneys’ fees are paid.”14 In other words, the The KPMG defendants moved to dismiss the indictment in camel’s nose remains under the tent: companies under 2006, arguing that the government had coerced KPMG to cut investigation can continue to expect questions on fee advances, off the advancement of fees and had interfered with their right even if they have some comfort that their determinations to counsel. They argued that KPMG’s refusal to advance fees ultimately should not be considered (at least expressly) in a prevented them from using counsel of their choice or to have charging decision. their counsel adequately prepare for and defend their case. After McNulty —A Return to Business Judgment In June 2006, the court ruled that the government’s pres- There are several points that counsel should keep in mind sure on KPMG to cut off fees violated defendants’ due process as to the significance ofStein and the McNulty Memorandum. rights and their rights to counsel. It then dismissed the The first is that the book is not closed onStein , which is now charges against 13 of the 19 defendants, finding that KPMG on appeal. Judge Kaplan’s findings of coercive effect of the would have paid their legal fees but for the prosecutors’ government’s conduct and the deprivation of constitutional coercion. The Court found that prosecutors intentionally rights were decidedly novel, as was the remedy. The govern- “reinforced the threat inherent in the Thompson memorandum” ment has urged on appeal that KPMG was not coerced and by placing “the issue of payment of legal fees high on its made its own decision to limit advancement of fees. Moreover, agenda with its first meeting with KPMG counsel,” stressing it points out that there was no deprivation of rights as to the its concern with the issue. Given the staggering cost of defendants since advancement was permissive, not mandatory, defense through trial – individual defendants had submitted under KPMG’s bylaws. A reversal in Stein could have a estimated costs of anywhere from $10 million to $44 million per substantial practical impact on discussions between prosecu- defendant – no defendant had the resources to pay for his own tors and company counsel on fee advancement, since the defense. The Court found that the constitutional right of a McNulty Memorandum still allows prosecutors considerable criminal defendant to control the presentation of his defense latitude to question companies on advancing fees. A reversal and to choose counsel extends, at times, to the right to more could re-energize some prosecutors to pressure companies not than one law firm paid for by whatever resources are available to advance fees. to him.11 In effect, “the government held the proverbial gun” to KPMG’s head to ensure that it did not advance fees to its Second, after McNulty, the parties will increasingly have an employees. interest in “putting it in writing” when it comes to advancement of legal fees, either by contract or in bylaws. Although permis- The DOJ Scales Back — Advancement Can Be sive advancement will continue to be the norm for most Considered if Evidence of “Intent to Impede an publicly-held corporations, privately-held organizations should Investigation” seriously consider committing to fee advancement by bylaw or Judge Kaplan’s rulings in Stein were accompanied by an contract. The KPMG case illustrates how a mandatory- outcry by bar groups and private industry against the Thomp- advancement bylaw provision might have protected the son Memorandum. In December 2006, DOJ issued its so-called employer’s interests: KPMG wanted to advance fees to its McNulty Memorandum, which curtailed, in some respects, the employees, and indeed management had announced internally Thompson Memorandum. The McNulty Memorandum its intent to stand behind its partners, but ultimately was provides that prosecutors should “generally not” take into pressured to cut them off. In McNulty, DOJ has stated that account a corporation’s decision to advance fees for employees compliance with a contract cannot be deemed evidence of under investigation and indictment. Rather, that decision non-cooperation. should be taken into account only “in extremely rare cases” Finally, while DOJ may continue to inquire about fee where “the totality of the circumstances show that [the advance- advancement, company counsel should stand firm on the issue ment of fees] was intended to impede a criminal investigation.”12 as one that ought to be reserved to the company’s directors. In Significantly, the McNulty Memorandum also noted that “a the corporate context, directors’ fiduciary duties provide corporation’s compliance with governing state law and its adequate assurance that they will consider appropriate factors

16 Boston Bar Journal • January/February 2008 in deciding whether to fund defense costs: “Absent a specifi- 6 See e.g., Thompson v. Williams Cos., Inc., No. Civ.A. 2716-VCS, cally worded bylaw providing for mandatory advancement, 2007 WL 2215953, at *3 (Del.Ch. 2007) (while Delaware law does Delaware law leaves the decision whether to advance litiga- not mandate the advancement of legal fees, if a company’s bylaws tion expenses to the business judgment of the board.”15 The mandate advancement, the bylaws will be strictly construed). As board and its designees need to answer to the shareholders an illustration of the Delaware courts’ strict construction of the for the responsible use of corporate funds and are unlikely to advancement obligation, if the corporation’s bylaws or employment countenance spending millions to advance funds for an contract require advancement until final disposition of a matter, a improper purpose. However, companies also must weigh their corporation will be required to continue to advance even after a interests served by advancing fees, including their own criminal guilty plea, which does not constitute final disposition. potential exposure to criminal and civil liability and fairness to Bergonzi v. Rite Aid, No. Civ.A. 20453-NC, 2003 WL 22407303, employees who risk potentially massive liability and expense at *2 (Del. Ch. 2003). by carrying out their job responsibilities. No legitimate public 7 Stifel Financial Corp. v. Cochran, 809 A.2d 555, 560-61 (Del. 2002); interests are served by government intrusion in a decision Morgan v. Grace, No. 20430, 2003 WL 22461916, at *4 (Del. Ch. that uniquely implicates the interests of the organization and 2003). the rights of employees. 8 See Memorandum Regarding Principles of Federal Prosecution of In fact, it is very hard for the government to articulate any Business Organizations, U.S. Deputy Attorney General Larry D. legitimate basis for intruding on the fee advancement Thompson, January 20, 2003 at p. 6, available at http://www.usdoj. decision. The criminal justice system works best when gov/dag/cftf/corporate_guidelines.htm. This focus on fee individuals have effective counsel, and in the most complex advancement had first appeared in the Thompson Memorandum’s matters, employers may even want their current and former predecessor, the 1999 Holder Memorandum, although that set of employees to retain what Mr. Thompson would regard as guidelines had not been binding on prosecutors. The SEC report “fancy” defense counsel. There is no real government interest that discussed corporate prosecution standards, the 2001 Seaboard served when prosecutors coerce an underfunded target to Report, does not mention advancement of fees as a relevant factor capitulate rather than contest charges on their merits. On the in evaluating corporate cooperation. See Memorandum Regarding subject of fee advancement, the system would work best if the Bringing Criminal Charges Against Corporations, U.S. Deputy parties followed a policy used elsewhere in the federal Attorney General Eric H. Holder, June 16, 1999, and attached government: prosecutors shouldn’t ask, and companies Guidelines for Federal Prosecution of Corporations, available at shouldn’t tell. ■ http://www.usjoj.gov/criminal/fraud/docs/reports/1999/ charging corps/html; Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934 and Commission Endnotes Statement on the Relationship of Cooperation to Agency Enforce- 1 United States v. Jeffrey Stein, 485 F.Supp.2d. 390 (S.D.N.Y 2007). ment Decisions, Exchange Act Release No. 44969), SEC Docket 2. In re Central Banking Sys., Inc., No. 12497, 1993 WL 183692, at *3 220, 2001 WL 1301408 (October 23, 2001). (Del. Ch. 1993).

3 Del. Code Ann. tit. 8, § 145(c) (2007); see also Mass. Gen. Laws ch. 9 United States v. Jeffrey Stein, 435 F.Supp.2d 330, 338, n.13 156D, § 8.51 (West 2004); N.Y. Bus. Corp. Law § 722 (McKinney 2007). (S.D.N.Y. 2006). However, indemnification is mandatory when and if the individual is 10 Stein, 435 F.Supp.2d at 342. successful on the merits. Del. Code Ann. tit. 8, §145(c) (2007); Mass. Gen. Laws ch. 156D, § 8.52 (West 2004); N.Y. Bus. Corp. Law § 723(a) 11 Stein, 485 F.Supp.2d at 422. As the Supreme Court recently (McKinney 2007). reaffirmed, the right to counsel of one’s choice is a fundamental 4 See Advanced Mining Systems, Inc. v. Fricke, 623 A.2d 82, 83 (Del. constitutional right. United States v. Gonzalez-Lopez, 126 S.Ct. 2557, Ch. 1992) (“virtually all public corporations have by by-law exercised 2566 (2006) (holding that deprivation of defendant’s counsel of the authority recognized by Section 145 [of the Delaware Corporate choice warranted a reversal of defendant’s conviction). Code] so as to mandate the extension of indemnifications rights in 12 Memorandum Regarding Principles of Federal Prosecution of circumstances in which indemnification would be permissible under Business Organizations, U.S. Deputy Attorney General Paul J. Section 145.”) McNulty, December 12, 2006 at 11 n.3, available at www.usdoj.gov/ 5 The Massachusetts statute provides that a court may even order dag/speeches/2006/mcnulty_memo.pdf. indemnification or advancement where a company believes the 13 Id. at 11. employee has not acted in good faith – i.e., if it would be “fair and 14 Id. at 11 n.4. reasonable” to do so “in view of all the relevant circumstances…even if [the director] has not met the [good faith] standard of conduct or 15 Majkowski v. American Imaging Mgmt. Svcs., LLC, 913 A.2d 572, failed to comply with” the requirements for obtaining an advancement 580 (Del Ch. 2006). of expenses under Massachusetts law. Mass. Gen. Laws ch. 156D § 8.54 (West 2004).

Boston Bar Journal • January/February 2008 17 Legal Analysis

By Daryl J. Lapp and Mark R. Vernazza

College and University Liability for Student Deaths and Injuries: Massachusetts Courts Find a Duty of Care Only in Narrowly Limited Circumstances

Introduction he shootings at Virginia Tech in April 2007 once again cast the spotlight on the responsibility of colleges and universities to protect their students from harm. To what extent schools should Thave a legal duty to do so has been the subject of frequent litigation and vigorous debate since the 1970s, when courts across the country began to declare that the doctrine of in loco parentis no longer applies in the college setting; that college students should be treated as adults who are funda- mentally responsible for their own safety and well-being; and accordingly that colleges generally have no duty to protect their students from harm, even when the harm is reasonably foreseeable.1 Consis- Daryl J. Lapp is a part- ner at Edwards Angell tent with this approach, courts generally find a duty only in those limited circumstances where the Palmer & Dodge LLP. college either has directly contributed to creating the risk of harm or is uniquely situated to protect the He chairs the firm’s student against a particular risk of which the college is aware. Courts typically find no duty to protect Educational Institutions students against harm arising from drinking, drug use, and other student conduct, which students Practice Group and currently co-chairs themselves are in the best position to prevent. the BBA College and Critics of the narrow-duty approach that has been adopted by most courts argue that while college University Law Section. He was one of the students technically are adults, they still are generally very young adults who often are living away attorneys who repre- from home for the first time and are unable fully to appreciate the risks of violent crime, binge drinking, sented MIT and the and the myriad other dangers to which they are exposed. Moreover, these critics contend, colleges and individually named MIT universities have a great ability to influence their students’ behavior and to provide security and other administrators in Shin v. MIT. resources that can help protect students; accordingly, they should be viewed as having a “special relationship” with their students that gives rise to a broad duty to protect them against foreseeable harm.

This article reviews the small number of Massachusetts cases that address the circumstances in which a college or university can have a legal duty to protect its students from harm. Consistent with the majority view in other jurisdictions, Massachusetts courts have rejected broad-based arguments for finding a “special relationship” between colleges and their students, and instead have found that colleges owe students a duty of care only in narrowly limited circumstances.

Mark R. Vernazza is an associate at Mullins v. Pine Manor College — A college owed a duty to protect its resident student Edwards Angell Palmer from criminal assault by an intruder. & Dodge LLP and a The first reported Massachusetts case to address a college’s duty to protect its students from harm, member of the firm’s and to date the only appellate case, is the SJC’s 1983 decision in Mullins v. Pine Manor College.2 The Educational Institutions Practice Group. case involved a freshman student who was abducted from her dormitory room and raped in another building on campus. The student alleged that the assailant gained access to her room as a result of the college’s inadequate security measures. The SJC held that the college had a duty to protect its resident

18 Boston Bar Journal • January/February 2008 students from foreseeable criminal acts by third parties, College who claimed that her former psychology professor finding that such a duty could be grounded in either of two improperly counseled her and induced her into a sexual principles. relationship. The Superior Court rejected the plaintiff’s argument that the college owed her a fiduciary duty to protect First, such a duty could be found in “existing social values her from harm by virtue of her status as a student, because and customs.” The Court found such a duty to be “firmly “the relationship between students and universities is generally embedded in a community consensus,” which “stems from the contractual rather than fiduciary,” and the student had not nature of the situation,” including the fact that “[t]he concentra- alleged any facts that could “create a fiduciary relationship out tion of young people, especially young women, on a college of the particular facts of her interaction with the College.” 5 campus creates favorable opportunities for criminal behavior.” The Court also emphasized that “[t]he threat of criminal acts of Erickson v. Tsutsumi — A college owed no duty to third parties to resident students is self-evident,” and that only protect a student injured on her way to an athletic the college is in a position to take steps to ensure students’ practice. safety, because students lack “the ability to design and imple- The narrowness of the holding in Mullins, and the fact that ment a security system, hire and supervise guards, provide the college-student relationship is not generally a “special security at the entrance of dormitories, install proper locks, and relationship,” also were recognized in Erickson v. Tsutsumi.6 establish a system of announcement for authorized visitors.” That case involved a Boston College student who was struck by Second, a duty also could be grounded in the “established a car while crossing a busy off-campus street on her way to principle that a duty voluntarily assumed must be performed rowing practice. The Superior Court held that the college did with due care.” The Court applied Restatement (Second) of not owe the student a duty of care even though her coach Torts, § 323, which provides that when a party undertakes to required her to bike or run to practice as part of the team’s render services to another which he should recognize as conditioning. Distinguishing Mullins, the court found that a necessary for the protection of the other person, the party is duty could not be based on either “existing social values and subject to liability for harm resulting from the negligent customs” or a “voluntary undertaking,” because there was no performance of that undertaking if either the negligent evidence that colleges undertake to provide “security staff or performance of the undertaking increased the risk of harm or crossing guards to ensure each student traverses the city the harm was suffered because of the other person’s reliance streets safely when they are participating in an extracurricular on the undertaking. The Court found such a duty existed activity.” The court also noted that the student in Mullins was because colleges undertake to protect resident students from harmed while she was doing something that the college the criminal acts of third persons, and those security measures affirmatively required her to do in order to attend the college – are among the factors that prospective students and their live on campus as a freshman – whereas the student in Erickson parents may rely upon in choosing a school. was not required to participate in the extracurricular activity of rowing. The court also found that no “special relationship” Mullins sometimes is cited for the broad proposition that existed, either by virtue of the plaintiff’s status as a student at colleges generally have a duty to protect their students from the college or based on the particular facts of this case. foreseeable harm. But this clearly is not correct. The holding and rationale are narrowly limited to the risk of criminal Shin v. Massachusetts Institute of Technology — A assaults to students in campus housing. The Court also noted duty could exist where there was an “imminent the decline of the doctrine of in loco parentis and affirmatively probability” a student would attempt to harm herself. stated that a college “need not police the morals,” i.e., the Shin v. Massachusetts Institute of Technology7 is one of just a activities, “of its resident students.”3 handful of cases nationwide to address the duty of college or university administrators to prevent a student’s suicide. The Williamson v. Bernstein — A college owed no fiduciary Superior Court agreed with the MIT administrators’ argument duty to a student claiming improper conduct by a that under Massachusetts law a non-clinician has no duty to professor. prevent suicide unless he either caused the decedent’s suicidal The next Massachusetts case to address the duty of a college condition or had the decedent in physical custody, such as a or university to protect its students from harm, Williamson v. hospital or prison, which was not the case with this student. Bernstein,4 recognized that “Mullins did not establish a special However, the court went on to say that a duty nevertheless relationship or a fiduciary relationship between colleges and could be found on the basis of a “special relationship,” because students.” Williamson involved a student at Fitchburg State these administrators were part of the student’s “treatment

Boston Bar Journal • January/February 2008 19 team” and knew there was an “imminent probability” that In a pair of decisions, the Superior Court held in Bash v. student would try to harm herself.8 Clark University 14 that a university and its administrators owed no duty to protect a student who died on campus of a heroin The court in Shin declined to follow the leading case outside overdose, even though the administrators knew the student had of Massachusetts, and the only recent appellate case, on a a history of substance abuse and other problems. The court college’s duty to prevent a student’s suicide, Jain v. Iowa,9 emphasized that the foreseeability of harm alone could not create which held that university administrators had no duty to a duty. Rather, that foreseeability must be weighed against the prevent a student’s suicide because the relationship was not burden that the defendant would have to undertake in order to custodial and – following the “voluntary assumption” analysis avert the harm, and it would be wholly “unrealistic” to expect of Mullins – nothing the administrators did in trying to assist that universities could prevent their students from engaging in the student affirmatively increased the risk that the student illegal drug use. A university could not prevent incidents such would harm himself or dissuaded the student from seeking as the plaintiff’s overdose “except possibly by posting guards in help either on or off campus. Instead, the court in Shin each dorm room on a 24-hour, 365 days per year basis.” followed the analysis in Schieszler v. Ferrum College,10 in which Moreover, imposing such a duty would conflict with the a federal trial court in Virginia found that a duty to prevent expansive privacy rights that “society has come to regard as suicide could exist where college administrators knew there the norm in connection with the activities of college students.” was an “imminent probability” that a student would attempt to harm himself and effectively took no action. The court in Bash distinguished Mullins, in which the student required protection from the criminal act of a third- In adopting the “special relationship” analysis in Schieszler, party, whereas the student in Bash “tragically died as a result of the court in Shin departed from Massachusetts precedent in [her own] choice” to ingest heroin. The court also distin- several respects. First, the court effectively found that a guished Shin, finding that although the administrators inBash “special relationship” can be based solely on the foreseeability were generally aware of the student’s problems, “the risk of of harm if the defendant fails to act, which is directly contrary death or serious injury resulting from a drug overdose was not to Massachusetts tort law. While the foreseeability of harm is so plainly foreseeable that a special relationship existed an important factor in determining whether a duty of care between the student and the university.” exists, foreseeability alone does not create a duty either on the basis of a “special relationship” or otherwise.11 Second, a Doyle v. Gould — A university had no duty to protect “special relationship” exists under Massachusetts law only a student murdered in an off-campus apartment. where the injured party was effectively deprived of any opportu- In Doyle v. Gould,15 the Superior Court held that Northeast- nity for self-protection, and instead was uniquely dependent on ern University had no duty to protect a student who was the defendant as the party uniquely positioned to avert the murdered in an off-campus apartment, even though Northeast- harm.12 That was not the case where the student herself was in ern had leased the apartment from the landlord and subleased the best position to avoid the harm, and where she remained it to the student. The court found there was no duty because free to seek assistance from her clinicians or others both on the decedent’s murder was not foreseeable given the lack of and off-campus. Finally, the Shin court also mistakenly read recent violent crimes on the premises, and because the Mullins as holding that colleges and their administrators broadly University did not control security for the building. The court owe “a duty to exercise care to protect the well-being of their also found that a duty could not be based on “existing com- resident students.” As noted above, the holding of Mullins is munity customs and norms.” Distinguishing Mullins, the court limited to the duty to “protect … resident students against the noted that “[a]s yet, no Massachusetts court has imposed a criminal acts of third parties,” and the case in no way supports a duty upon a college or university to protect a student from broad duty to protect students from all foreseeable harm. harm while that student lives in [off-campus housing].”

The decision in Shin was roundly criticized in Mahoney v. Conclusion Allegheny College,13 in which a Pennsylvania court held that Massachusetts courts, like those in other jurisdictions, have college administrators had no duty to prevent a student’s been reluctant to find a broad duty on the part of colleges and suicide. The Mahoney court criticized Shin for finding a special universities to protect their students from harm, and instead relationship “outside the context of custody and control,” and have generally found that a duty exists only where the school is more generally for employing an approach to duty that was uniquely in a position to take steps to avert a risk of which it is “steeped in ‘hindsight’” and “in effect an attenuated and unarticu- aware. As new cases arise, Massachusetts courts should lated form of ‘in loco parentis.’” continue to find a duty only in these narrow circumstances. Bash v. Clark University — A college had no duty to Imposing broad duties of care, especially “special relationship” protect a student from a drug overdose. duties that are based largely on the foreseeability of harm,

20 Boston Bar Journal • January/February 2008 would be contrary to well-established tort law principles, which recognize “special relationship” duties only where a plaintiff is uniquely dependent on the defendant for protection. The imposition of such broad duties also would be incompatible with the significant personal freedoms and autonomy that college students have demanded, and enjoyed, since the 1960s. Moreover, and perhaps most significantly, imposing such foreseeability-based duties ultimately would diminish rather than enhance, student safety and well-being. If, as in cases like Shin, the existence of a duty of care depends largely or entirely on the foreseeability of harm to a student, then college administrators will have every incentive to be less informed about, and less involved with, students who may be struggling with mental health, substance abuse, relationship violence, or other issues that put them at risk of harm. Thus, colleges and universities will continue to argue against the imposition of broad, foreseeability-based duties of care, not so that they can avoid any effort to help protect their students from harm, but rather so that they can actively engage with students, especially the most at-risk students, without fear that doing so will increase the risk of liability. ■

Endnotes

1 See, e.g., Freeman v. Busch, 349 F.3d 582, 587 (8th Cir. 2003) (since the late 1970s, with the decline of the doctrine of in loco parentis, “the general rule is that no special relationship exists between a college and its … students”) (collecting cases).

2 389 Mass. 47 (1983).

3 The SJC implicitly confirmed the narrowness of its holding inMullins a decade later in Judson v. Essex Agricultural and Technical Institute, 418 Mass. 159 (1994), which held that a vocational high school had no duty to inspect the safety of its student’s school-related, off-campus workplace or to ensure that the employer carried workers’ compensation insurance. Distinguishing Mullins, the SJC “discern[ed] no existing social values or customs demonstrating that vocational schools … have recognized” either such obligation. id. 164. If the SJC was unwilling to find that a secondary school had a broad duty to protect its students from harm, it obviously would not find that colleges and universities owe such a duty to their students, who are adults.

4 1996 WL 1185104 (Mass. Super. Ct. Feb. 20, 1996) (McHugh, J.).

5 The court held that the student potentially could make out a claim for negligent supervision or hiring, or negligent failure to warn, if she could establish that the “[c]ollege knew or should have known of the danger [the professor] allegedly posed to plaintiff or to students like [her].” The court’s holding on this point did not depend on the college-student relationship, but merely reflected the general rule that any employer can be liable for negligent hiring or supervision when it has reason to know that an employee poses a danger to others. See id. at *4, n.6 (collecting cases).

6 2000 WL 1299515 (Mass. Super. Ct. May 17, 2000) (Smith, J.).

7 2005 WL 1869101 (Mass. Super. Ct. June 27, 2005) (McEvoy, J.).

8 Although the court denied the administrators’ motion for summary judgment on the negligence claims asserted against them individually, the court granted summary judgment for MIT on the breach of contract and Chapter 93A claims that the plaintiffs asserted against the university itself. The court found no enforceable contract was created either by MIT’s general representations about student mental health care or by any specific statements made to the student’s parents about their daughter, and found that MIT was a charitable corporation that was not “engaged in trade or commerce” for purposes of Chapter 93A.

9 617 N.W.2d 293 (Iowa 2000).

10 236 F. Supp. 2d 602 (W.D. Va. 2002).

11 See Restatement (Second) of Torts, § 314 (1965) (“The fact that [an] actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”). See also Bash v. Clark University, infra.

12 See Luoni v. Berube, 431 Mass. 729 (2000) (collecting cases); Kavanagh v. Trustees of Boston University, 440 Mass. 195 (2003) (a university had no special relationship with, and owed no duty to, an athlete from another school who was assaulted on a basketball court by one of university’s players, because the plaintiff “did not depend on the university” for protection and the university did not “affect [the player’s] ability or motive to protect himself”).

13 No. AD 892-2003 (Pa. Ct. Common Pleas Dec. 22, 2005).

14 2006 WL 4114297 (Mass. Super. Ct. Nov. 20, 2006) (Agnes, J.); 2007 WL 1418528 (Mass. Super. Ct. April 5, 2007) (Agnes, J.).

15 2007 WL 1203567 (Mass. Super. Ct. Apr. 23, 2007) (Lauriat, J.).

Boston Bar Journal • January/February 2008 21 Pro Bono Report

By Lisa M. Hodes Representing Victims of Domestic Violence Under M.G.L. Chapter 209A

he Supreme Judicial Court has stated that “[q]uite simply, abuse by a family member…is a violation of the most basic human right, the most basic condition of civilized society: the right to live in Tphysical security, free from the fear that brute force will determine the conditions of one’s daily life.” Custody of Vaughn, 422 Mass. 590, 595, 664 N.E.2d 434, 437 (1996). M.G.L. Chapter 209A provides judicial remedies for victims of domestic violence who have been placed in “imminent fear of physical harm” by family members or persons with whom the victim has had a substantive dating relationship. The represen- tation of 209A clients provides attorneys — especially junior associates who may have little client contact in their first few years of practice — with an opportunity to make a remarkable difference in someone’s life. Lisa M. Hodes is an associate I met my first 209A client, Sandy (whose name has been changed to protect her identity), in late 2004. at Greenberg She was a small, stout woman with thin blonde hair and sunken gray eyes. Her attire was simple and Traurig, LLP, where casual. We were in the lobby of my law firm and her expression revealed that she was intimidated. I led she focuses her her into a conference room and encouraged her to make herself comfortable. As soon as she sat down, practice on com- she began to share her heartbreaking story of drugs, alcohol and prostitution. Luckily, several years mercial litigation and environmental earlier she realized that she had hit rock bottom and had attempted to clean her life up. In the meantime, matters. She is she had met her husband and soon discovered that she was pregnant. They subsequently married and the founder of shortly thereafter, while she was pregnant, he started to unleash his temper. Although she had almost the firm’s 209A completely recovered from her addictions, she faced a new struggle: a physically abusive husband. Project. Over the next eight years she endured his physical, mental and emotional abuse. It culminated one night when, after an argument, he threw her down the stairs. She called the police from a bathroom while he pounded on the door, threatening to kill her. He was arrested and Sandy obtained a 10-day temporary restraining order. As provided for in Chapter 209A, Sandy wanted to extend the temporary restraining order for one year with one modification: with less than $500 per month in income without her husband, she needed child support. Sandy sought legal assistance to help with the matter and was referred to me.

Like most victims of domestic violence, both male and female, Sandy believed that she was alone. Other than her minor child and husband, she had no family in the area. Any friends she might have had were intimidated by her husband and disgusted by the abuse. However, Sandy’s feelings of isolation changed during our first meeting. The grandeur of the office and its extensive resources filled her with pride. In me, she had finally found an advocate, an ally and a friend. This was her team.

Sandy and I met several times to prepare for the hearing, and I watched her transform over those few days. She arrived a victim, but left empowered. During our last meeting, she voiced her desire to go back to school to be a journalist and I helped her create a must-read book list for her son.

The morning of the hearing, Sandy was thirty minutes late meeting me. I became concerned that, like many victims of domestic violence, Sandy would not be able to follow through with the proceeding. This is especially common when children are involved. When Sandy did arrive, she took my hand and we walked into the courtroom together, side-by-side.

While we waited for her case to be called, several inmates were escorted into the courtroom, among them Sandy’s husband. I felt her shiver and noticed that her eyes had filled with tears. I took her hand and assured her that it would be all right. And it was. Ultimately, the judge granted the one year extension and provided Sandy with child support. When we left the courtroom, Sandy was jubilant. This was the first time in her marriage that she had stood up for herself--and won. As we parted ways, she shook my hand, offered her infinite thanks and told me that she would never forget me. I assured her that I would never forget her, either. ■

22 Boston Bar Journal • January/February 2008 BBA Update Opening Minds, Creating Opportunity: The BBA’s Summer Jobs Program ast year, Christine Hughes, Vice President and General students from Boston’s public high schools, the program Counsel of Emerson College, hired Massiel De Los provides these teenagers with the chance to come away with LSantos, a student at Boston’s John D. O’Bryant High an insider’s view of many of the city’s most prestigious and School, through the Boston Bar Association’s Summer Jobs visible companies, institutions, and law firms, an opportunity Program. When she learned Massiel is bi-lingual, Christine not often readily available to urban youth. Last summer, 33 legal employers in Boston hired 39 students through the program. Depending on the office’s needs and the student’s abilities, tasks can include filing, photocopying, data entry, running errands, reception and library duties. The BBA encourages employers to identify a mentor within the office who can provide the student not only with practical advice about the daily work, but with career and educational guidance. The program has an important educational component as well. Each Thursday morning during the two-month program, students attend enrichment seminars at the BBA, run by volunteer lawyers and judges. Last summer, students learned about using credit properly, the consequences of unwise uses Christine Hughes, Vice President and General Counsel of of credit, and ADR. The students also went to Boston City Emerson College, with Massiel De Los Santos Hall for a seminar on local city government. The financial literacy workshops were held as a part of the M. Ellen put her to work translating some of Emerson’s policies into Carpenter Financial Literacy Program. Spanish. “I had been expecting just to get a summer intern through the program, so was happily surprised to meet someone I so enjoyed and admired and with whom I wanted to continue my relationship after the program,” says Christine. “I really tried to encourage Massiel to lift her sights and hopes as to where she might go to college.” John Chu, of Chu, Ring & Hazel, hired Devon Cornelius, a student at Urban Science Academy. “Devon spearheaded the implementation of Summer Jobs Program participant Miguel Medina speaks to his our document retention/destruction peers at the graduation ceremony policy by drafting spreadsheets to assist the firm in tracking closed client “I really enjoyed the Thursday morning sessions, as well as getting to meet people who are standouts in the legal com- files, scanning and cataloging various John Chu of Chu Ring munity,” said Miguel Medina, a student at TechBoston firm and client documents, and & Hazel assisting the firm with general Academy. “We learned how to manage our money, how local administrative functions,” says John. government works, and how to work out conflicts in a “Devon was a pleasure to have in the office; during his time peaceful way.” here, he expressed an interest in pursuing a career in criminal In order to be selected as participants, students are pre- justice and handled all the work assigned to him in a profes- screened by teachers or guidance counselors and submit a sional manner.” written application, essay and recommendations. Participants Since 1993, private law firms, corporations and public agencies have been participating in the Summer Jobs are selected based on their academic motivation, achievement Program. A collaboration of the BBA, the City of Boston, the and interest, and their school attendance record. The stan- Boston Public Schools, and the Boston Private Industry dard pay rate is $9.00/hour, and the employer determines the Council, the program provides its participants with an student’s schedule. opportunity to invest in Boston’s future leaders. Drawing from To learn how you can hire a student for the summer of 2008, an ethnically and racially diverse group of 15- to 18-year-old contact Paul Dullea at [email protected] . ■

Boston Bar Journal • January/February 2008 23 BBA Update Justice Requires a Walk to the Hill

“Justice, sir, is the great interest of man on this earth. It is the ligament which holds civilized beings and civilized nations together.”

Daniel Webster, September 12, 1845

f the annual Walk to the Hill was conceived with a great to the Hill since 2002. “The commitment and support of BBA sense of idealism, then our Ninth Annual Walk shows that members — especially BBA Sponsor Firms — is instrumental Ithe law still reaches and represents the hopes of all of us. to the success of Walk to the Hill.” On February 28, the Boston Bar Association will once again Last year, nearly every BBA Sponsor Firm participated in join with the Massachusetts Bar Association and the Equal the Walk, with the strongest showings coming from Choate, Justice Coalition (EJC) to deliver the message to legislators Hall & Stewart, Seyfarth Shaw, Foley Hoag, and Verrill Dana. that there is nothing more important to the well being of our At the Annual Law Firm Awards Luncheon, Huston said she communities than increased funding for civil legal aid. This would like to see 100 percent participation of BBA Sponsor year’s event is expected to surpass last year’s record numbers – Firms this year. 500 attorneys from 39 sponsor firms and 12 managing part- The BBA’s constant and visible commitment to advocate for ners. In addition, 90 general counsel from leading meaningful access to justice has resulted in increased funding Massachusetts-based corporations and all local law school in the last three state budgets. That said, there is always ample deans signed letters in support of this effort. The event was co- room for improvement. sponsored by 24 county, minority, and specialty bar associations. As the budget process for 2009 gets underway, the BBA will once again focus its advocacy efforts on increased funding for Stephen H. Oleskey of WilmerHale tirelessly and passion- civil legal aid. In December, BBA Council members called on ately led the EJC as Chair since its founding in 1998. We salute him as he moves into other roles, and we welcome BBA Council member Julia Huston of Bromberg & Sunstein as the new Chair of the EJC. “The Walk to the Hill is one of the most effective and highly profiled legislative advocacy events in the legal community, At the Walk to the Hill awards luncheon for law firm captains at Bromberg and Sunstein: Julia Huston and has Samuel B. Moskowitz, Davis, Malm & D’Agostine; Daniel C. Winston, Choate Hall & been hailed Stewart; Patricia E. Comfort, Executive Director, Equal Justice Coalition; Alexandra M. Gorman, Skadden, Arps, Slate, Meagher & Flom; Stephen H. Oleskey, Chair, Equal Justice as a model Coalition; Angela Gomes, Skadden, Arps, Slate, Meagher & Flom; Julia Huston, Bromberg & nationwide,” said Julia, who has coordi- Sunstein; Claudia Trevor-Wright, Foley Hoag. Also receiving awards but not pictured: Michael F. Dowley, Seyfarth Shaw; George P. Field, nated law firm participation in the Walk Verrill Dana.

24 Boston Bar Journal • January/February 2008 Ben Clements, Chief Legal Counsel to Governor Patrick, to As we all know, the crisis atmosphere surrounding the make legal services funding a priority in the Administration’s foreclosure eruption has its own devastating impact on the initial budget proposal. It is critical that individual BBA supply of affordable housing. Legal services program attorneys members reach out to are often on the front lines helping property owners and their elected legisla- tenants with foreclosure and eviction matters. Underscoring its tors. A visit, a letter, or commitment to access to justice for all, the BBA has been a phone call during working with the Attorney General’s office, the Volunteer each step of the state Lawyers Project, the Legal Advocacy Resource Center, and the budget process National Consumer Law Center to find workable solutions to reminds legislators this problem. that civil legal services Courts continue to be clogged as low-income litigants are essential constitu- attempt to represent themselves with little knowledge of the ent services. As law or court procedure. Without a lawyer to navigate the court lawyers providing Ben Clements, Chief Legal system, the likelihood of a just and equitable outcome is these services on a Counsel to Governor Patrick, at a recent BBACouncil meeting seriously compromised. regular basis, BBA members are in the The BBA applauds its individual members and Sponsor best position to help our elected officials and policy makers Firms, both for their charitable giving and for the extraordinary comprehend the critical importance of adequate funding for amount of pro bono work they contribute each year to ensure civil legal aid in the Commonwealth. that all people have meaningful access to justice. From the Lawyer for a Day in the Housing Court program to the newly For fiscal year 2009, the EJC and its partners are requesting established Family Law Section pro bono project in the Probate an additional $5 million in general support for civil legal aid – & Family Court, BBA members, on a daily basis, are assisting line item 0321-1600. The total Massachusetts Legal Assistance those who depend on our courts to solve difficult problems. We Corporation budget request for fiscal year 2009 is $14,670,424, must remember, however, that these efforts can never be a which includes $9,430,541 for the general support of programs. substitute for critical public funding. All of us benefit from an “Civil legal aid for low-income individuals continues to be adequately-funded justice system, not just low-income clients. seriously under funded in Massachusetts,” says Robert B. We will not forget those who gave so much and are no longer Foster of Rackemann, with us. Bob Sable, Executive Director of Greater Boston Legal Sawyer & Brewster, Chair Services reflected on his work with Nancy King, Executive of the Massachusetts Director of South Middlesex Legal Services, who passed away Legal Assistance Corpora- in December, “Nancy was a master lobbyist, persuading every tion. “Legal aid programs state representative and senator in her district to support are currently turning away increased funding for civil legal services. She always made a almost half of all the eligi- human connection with everyone she met, bringing intellectual ble low income people that prowess, immense energy, attention to detail and above all, contact them seeking unending good humor.” assistance because they simply don’t have We hope you can join your BBA colleagues in the Great Hall enough resources. With a of the State House from 11:00 am to 1:00 pm on February 28. Robert Foster modest increase of $5 Let our Walk to the Hill foretell the bountiful and fulfilling year million, programs could to come. help 15 percent of those income eligible people with serious For more information on BBA public policy, please contact legal problems involving such issues as child custody, eviction, Debbie Gibbs, Director of Government Relations, at (617) 778- and denial of health care.” 1942 or by e-mail to [email protected]. ■

Boston Bar Journal • January/February 2008 25 BBA Update Celebrating the Holidays at the BBA…

Mark Fleming, WilmerHale; BBA President Lisa Cukier, Burns & Levinson; Christina Miller, Middlesex Tony Doniger; Jack Regan, WilmerHale. DA’s Office; Randy Gioia.

Jack Regan, WilmerHale; Kathy Weinman, Dwyer & John Affuso, Massport; Leslie Cook, Chicago Title Insurance Collora; Damon Hart, Holland & Knight. Co.; Larry DiCara, Nixon Peabody.

Sandy Jesse, BBF President and Executive VP & Chief Legal Maureen Mulligan, Ruberto, Israel & Weiner; Officer, Blue Cross Blue Shield of MA; Kimberly Jones, Foley Hoag. Don Frederico, Greenberg Traurig.

Christine Hughes, VP & Gen. Counsel, Emerson College; Jim Julia Huston, Bromberg & Sunstein; David Rountree, Masterman, Greenberg Traurig. Citizens Bank.

26 Boston Bar Journal • January/February 2008 Photos by Aaron J. K. Ostrow Boston Bar Journal • January/February 2008 27 BBF News

Boston Bar Foundation Society of Fellows

Executive Fellows($50,000) John J. Curtin, Jr. Sandra L. Jesse* Lawrence T. Perera* Hon. Nonnie S.Burnes** Paul T. Dacier Hugh R. Jones, Jr.* John A. Perkins* Laurie Burt** Gene D. Dahmen* Jeffrey F. Jones* Rudolph F. Pierce* John F. Cogan, Jr.** Paul P. Daley* James F. Kavanaugh, Jr. Elizabeth F. Potter & Lena G. Goldberg** A. Jeffrey Dando* Michael B. Keating Alan L. Lefkowitz* Joan A. Lukey** Robin & Andrew Daniels Jeffery L. Keffer Jill Cranna Preotle* William C. Mutterperl** Michael DeMarco Jarvis Kellogg & Elizabeth Maria E. Recalde Regina M. Pisa** Brackett B. Denniston Munnell Abigail Record* R. Robert Popeo* Lawrence S. DiCara* Christopher A. Kenney John J. Regan Joel M. Reck** James S. Dittmar* George H. Kidder* John R. Regier* Gary A. Spiess** Anthony M. Doniger* Hoil Kim Richard W. Renehan J. Owen Todd** John D. Donovan, Jr. Robert L. Klivans* David P. Rosenblatt John Towers* John B. Douglas III* Joseph L. Kociubes* Peter Rosenblum John P. Driscoll, Jr.* Martha J. Koster* Joseph F. Ryan Senior Fellows ($25,000) Thomas E. Dwyer, Jr. Renée M. Landers* Mary K. Ryan* Wm. Shaw McDermott**, Douglass N. Ellis, Jr.* David H. Lee* Joseph F. Savage, Jr. Chair of Society of Fellows David L. Engel William F. Lee William H. Schmidt Lauren Stiller Rikleen Donald J. Evans* Edward Leibensperger* Richard S. Scipione & Sander A. Rikleen* Phyllis E. Federico Stephen P. Lindsay* A. Hugh Scott Michael K. Fee Janice B. Liva Joel B. Sherman Fellows ($10,000) David L. Ferrera Jean S. Loewenberg Edward Matson Sibble, Jr.* Samuel Adams* George P. Field Hon. James P. Lynch, Jr.* Bruce A. Singal Ferdinand Alvaro, Jr. Terrence M. Finn Hon. Sandra L. Lynch* Thomas G. Sitzmann William R. Baldiga Richard E. Floor Alex H. MacDonald Clark R. Smith* Edward J. Barshak* Samuel Frankenheim* Gael Mahony Edwin E. Smith The Bartlett Family Robert B. Fraser* R. Bradford Malt* Gary Smith Maureen Scannell Bateman Donald R. Frederico James J. Marcellino Robert H. Smith John E. Beard* Harvey W. Freishtat* John K. Markey Richard A. Soden* G. d’Andelot Belin* Susan V. Fried & Hon. Margaret H. Marshall Nicholas U. Sommerfeld* Roberta F. Benjamin Jeffrey B. Rudman Edward I. Masterman Joseph D. Steinfield Kenneth W. Bergen* Lisa C. & Marc L. James A. McDaniel R. Newcomb Stillwell Beth I. Z. Boland Goodheart Willard G. McGraw, Jr.* C. Thomas Swaim* Janet E. Bostwick Louis A. Goodman* James E. McGuire* Deborah L. Thaxter Hon. Margot Botsford Karen F. Green Hon. James & Katherine Gary Owen Todd and Stephen Rosenfeld Stanley N. Griffith McHugh* William B. Tyler* Jeremiah Bresnahan Ernest M. Haddad* William J. McNally* Walter G. Van Dorn Lee Carl Bromberg John P. Hamill* Mark C. Michalowski Herbert W. Vaughan* John G. Brooks* John D. Hamilton, Jr.* Richard G. Mintz* Mary E. Weber and Scott Douglas Burke* Roy A. Hammer* John T. Montgomery Robert Duggan Thomas D. Burns* John D. Hanify* Michael E. Mooney* Kathy B. Weinman Charles C. Cabot* Michael J. Haroz* George Marshall Moriarty Henry Wheeler* Richard P. Campbell* Mark P. Harty* Joseph E. Mullaney* Barry B. White J. W. Carney, Jr. James C. Heigham* Joseph E. Mullaney, III Toni G. Wolfman* M. Ellen Carpenter Irwin M. Heller Robin D. Murphy and Lisa Cameron Wood Stephen W. Carr* Peter G. Hermes* Martin F. Murphy Raymond H. Young* Truman S. Casner* Harold Hestnes* Timothy Murphy Peter F. Zupcofska Denise Jefferson Casper Richard Hiersteiner Thomas R. Murtagh David C. Chapin Keith F. Higgins John A. Nadas* Ansel B. Chaplin Edward F. Hines, Jr.* Nestor M. Nicholas* John H. Chu Christian M. Hoffman* Thomas L. P. O‘Donnell* R. J. Cinquegrana* Stephen W. Howe Stephen H. Oleskey* (*Denotes Life Fellow fulfillment of John H. Clymer* Nancy D. Israel & Mary Ellen O’Mara* $10,000) Frances S. Cohen Lonnie A. Powers Merriann M. Panarella* Michael A. Collora James and Laura Jacobson Christopher Panos (**Denotes fulfillment of additional Ian Crawford* Andre C. Jasse, Jr. Gordon R. Penman pledge over $10,000)

28 Boston Bar Journal • January/February 2008 Boston Bar Journal • January/February 2008 29 FELDMAN Professional Land Surveyors

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