Will Rhode Island Be the Next Attorney State?

WWW.REBA.NET THE NEWSPAPER OF THE REAL ESTATE BAR ASSOCIATION MARCH 2020 • Vol. 17, No. 2

Supplement of Massachusetts Lawyers Weekly Boston Red Sox CEO Kennedy to deliver conference keynote

Boston Red Sox CEO Sam Kennedy has overseen its growth from a start-up will deliver the keynote address at RE- to a world-class agency with an inter- BA’s Spring Conference luncheon May 4 national roster of clients that includes at the Four Points Sheraton in Norwood. the Red Sox, Liverpool Football Club, Kennedy’s remarks will include a NESN and Roush Fenway Racing, and Q&A session moderated by REBA partnerships with Boston College, Ma- board member Paul Alphen. jor League Baseball Advanced Media, Kennedy is entering his 18th season the Dell Technologies Championship, with the club and as well as a landmark marketing part- his third as presi- nership with NBA superstar LeBron dent and chief ex- James. ecutive officer. A native of Brookline who grew In addition to up within walking distance of Fenway his role with the Park, Kennedy, 45, joined the Red Sox ©Swampyank/Wikimedia Commons Red Sox, Kennedy in 2002 after working for the San Diego is chief executive Padres, from 1996 to 2001. of Fenway Sports Kennedy is active in the community KENNEDY Management, a and serves on the MLB International Will Rhode Island be sports marketing Committee and MLB Ticketing Com- and sales agency mittee, as well as the Beth Israel Dea- that is a sister company to the Red Sox coness Medical Center Trustee/Advi- the next attorney state? under the Fenway Sports Group family. sory Board and Marketing Committee; Since joining the Red Sox, Kennedy the Trinity College Board of Fellows; BY ASHLEY SADLER FISCHER has played a key role in the dramatic Winsor School Board of Trustees; Da- ney should be used to conduct a closing. Such has been the common prac- growth of the Red Sox brand. Recall- na-Farber’s Visiting Committee for In- When a per- ing the days when he was able to come stitute Initiatives; The BASE’s Advisory tice historically in Rhode Island, but it son purchases a may soon become a legal requirement. to the ballpark on his dad’s clergy pass, Committee; and Camp Harbor View home, there is a Kennedy has recently focused on en- Board of Directors. The Rhode Island Supreme Court great deal of work is contemplating whether the act of couraging young people to experience A former captain of the baseball done by real es- conducting a closing is the practice of Fenway Park through the creation of team at Brookline High with friend tate professionals law, requiring the involvement of an a “Kids Only” Gate K, offering a free and classmate Theo Epstein, Kennedy to ensure that the attorney. The court is faced with this ticket to youths who sign up for Red graduated from Trinity College (Con- transaction goes decision upon a finding by the Unau- Sox Kid Nation. necticut) in 1995. smoothly and that thorized Practice of Law Committee In 2004, Kennedy helped create To register for the REBA 2020 the parties understand their rights and that a non-attorney had engaged in the Fenway Sports Management, and he Spring Conference, go to www.reba.net. obligations under the deal. Since this is unauthorized practice of law by run- the largest financial decision that most ning a title company and conducting Americans make, it is critical that the closings. The committee’s determina- professionals involved are well qualified tion does not have the force of law, but and able to adeptly represent the inter- it has recommended that the Supreme 2020 REBA SPRING CONFERENCE ests of the parties to the transaction. MONDAY, MAY 4, 2020 This is why many feel that an attor- See page 6 FOUR POINTS SHERATON, NORWOOD BREAKOUT SESSIONS SJC to address proper recipient

The Good, Bad and Ugly: Working with Life Estates: Creation, What’s Brewing on Beacon Hill? Changes & Conveyances — of unidentified IOLTA funds Francis J. Nolan, Edward J. Smith, Practical Skills Douglas A. Troyer Leo J. Cushing, Lisa J. Delaney BY MARY K. RYAN In the Matter of Gregory M. Ol- AND MICAH W. MILLER chowski raises the question of wheth- Got Tenancy? At-Will or At-Sufferance Nuts and Bolts of the Mortgage Discharge Statute — Practical Skills er unidentified IOLTA funds should Hon. MaryLou Muirhead, go to the IOLTA Committee to sup- Ward P. Graham, Kurt F. Stuckel Ted S. Papadopoulos port legal services for low-income clients, as interest from IOLTA ac- Pervasive Title Pitfalls: Don’t Fight Authority, Authority counts already does, or to the Trea- The Greatest Hits (and Misses) Always Wins — Practical Skills surer’s Office under Massachusetts’ Matthew J. Carbone, Tucker Dulong, Paula D. Lyons, abandoned and unclaimed property Margaret M. Fortuna Daniel J. Vieira law, G.L.c. 200A. REBA joined with the BBA and Tales from the REBA Ethics Hotline: Massachusetts Lead Paint Laws — RYAN MILLER the MBA in an amicus brief support- Questions for Conveyancers Practical Skills ing the position of the IOLTA Com- Rodney S. Dowell, Vincent N. DePalo, In a case closely watched by bar mittee that it should be the recipient Kathleen M. O’Donnell Dominic H. Poncia III organizations and legal services pro- of the unidentified funds. As REBA grams, the Supreme Judicial Court Do’s and Don’ts of Recent Developments in notes in the joint amicus brief, a sub- Deeds of Distribution Case Law Update will consider what should happen stantial amount of IOLTA revenue to funds in an IOLTA account for comes from real estate practitioners, Christina T. Geaney, Tracie M. Kester Philip S. Lapatin which the rightful owner cannot be making this issue especially relevant identified. See page 11 PAGE 2 REBAnews MARCH 2020 Taking a stand[ing] against ‘Murchison v. Sherborn Board of Appeals’

BY ROBERT KEITH HOPKINS part: AND NICHOLAS P. SHAPIRO “Plaintiffs cite several cases in support of the argument that density-based claims of harm can confer standing. This court does not take issue with the theoretical premise but the cases cited have significantly different factual contexts and largely present challenges to construction on undersized lots which have merged with adjacent lots in areas where ‘existing development is already more HOPKINS SHAPIRO dense than the applicable zoning regulations allow.’ Dwyer v. Gallo (2008); We are the authors of a recently see also, e.g., Mauri v. Zoning Bd. of filed amici brief on behalf of REBA Appeals of Newton (2013); Marhefka v. and The Abstract Club, with the Su- Zoning Bd. of Appeals of Sutton (2011). preme Judicial Court, which has taken While the cases cited by Plaintiffs further appellate review of the Ap- might allow, they certainly do not peals Court’s decision in Murchison compel a ruling in this case that Plain- ©wittybear v. Sherborn Board of Appeals, 96 Mass. tiff has established particularized harm App. Ct. 158 (2019). to them by the proposed construction REBA and The Abstract Club based on increased density. Based on have decided to support the abroga- On March 6, a day after hearing oral argument, the Supreme Mr. Murchison’s testimony, this court tion of the Appeals Court’s decision, Judicial Court issued an order affirming the Land Court’s dismiss- finds Plaintiffs simply do not want because it would have the effect of al of the complaint, noting that a full written opinion would fol- any construction on Lot 69F.” Mur- conferring automatic standing on chison v. Novak, 26 LCR 278, 280-281 low. Such swift action from the SJC was unprecedented, and im- abutters in zoning appeals by merely (Scheier, J.). plied that the court was (rightfully) concerned about the fate of claiming a violation of a dimensional Judge Scheier’s reasoning is sound pending zoning appeals during the under-advisement period. By and conforms to longstanding case promptly affirming the judgment of dismissal by the Land Court, Please do not be law. Density-based harms can be the the SJC sent a clear message to the trial courts: there is no per se basis for a claim of injury and, there- standing in Massachusetts. lulled into the false fore, standing; however, the mere fact that an abutter plaintiff has identified — Robert Keith Hopkins idea that only large a genre of injury that is cognizable under the Zoning Act or the local zon- developers will suffer ing bylaw or ordinance does not mean that a plaintiff has proven an individu- In some instances, practically lation.” Murchison, 96 Mass. App. Ct. from this decision. alized injury of this legally recognized speaking, it is true that if a munici- at 164-165 (footnote omitted). Every property owner sort will flow from the local board’s pality has adopted, for example, three- In the footnote corresponding to decision. acre zoning as Sherborn has in Mur- this analysis, the panel further as- would be at risk. On the plaintiffs’ appeal, the Ap- chison, then this legislative choice may serts that “[i]t is the fact of the place- peals Court got tangled in the ad- make it factually more difficult for an ment of the house on the lot across mittedly difficult and dense web of abutter-plaintiff to prove that he will the street from the plaintiffs that be harmed by a local zoning decision. demonstrates particularized harm to regulation. standing case law under the Zoning Act. The Appeals Court’s first error However, while it may have an im- the plaintiffs, not the mere violation The legal distinctions between pact on the likelihood that an abutter standing alone.” Id. at 165 n. 5. standing to bring a claim and the was to conflate the distinct inquires of the plaintiffs’ claimed injury for will suffer harm from a local zoning However, “the placement of the merits of the underlying claim would decision, municipal zoning does not, house on the lot across the street from be abolished. So, too, would the dis- standing with that of the merits of the and cannot, define or provide the the plaintiffs” isitself merely the “viola- tinction between the legal cognizabil- underlying zoning appeal. This flaw evidentiary basis for an injury-in-fact tion standing alone.” This reasoning is ity of a claimed injury and the neces- in reasoning is best demonstrated by for the purposes of G.L.c. 40A, §17. totally tautological and circular. Using sity of proving that the claimed harm the following passage: Rather, it governs the legality of lo- a different phrase to refer to the same is individualized and an injury-in-fact “There is no platonic ideal of over- cal zoning decisions. To reach the op- thing does not somehow make the thing (not a mere negative impact). crowding against which the plaintiffs’ posite conclusion, the Appeals Court different if the meaning of the words If not corrected, these consequenc- claim is to be measured. Although the mistook the local law that controls the making up the phrase communicates the es will have a dramatically negative distance between the houses might merits as authoritative with respect to same meaning and content. If such cir- impact on the ability of homeown- not amount to overcrowding in an ur- the question of injury, but an injury is cularity must be employed to reach the ers and developers alike to improve ban area, absent some constitutional an injury — it is an objective, factual desired outcome, then a court should re- and develop property throughout the concern, which the defendants do visit what is the desired outcome. commonwealth. not argue exists in this case, cities and inquiry, not a sliding scale from com- In addition, this reasoning is di- Below is a summary of our argu- towns are free to make legislative judg- munity to community. rectly at odds with longstanding, ment as set forth in the amici brief, ments about what level of density con- The Appeals Court’s second er- binding density-based case law, which highlighting the Appeals Court’s le- stitutes harm in various zoning districts ror was that it, in essence, dispensed has uniformly required more than a gal errors in the hope that the SJC and to codify those judgments in bylaws. with the factual requirement of dem- claimed violation of density regula- abrogates the Appeals Court panel’s It does not matter whether we, or a onstrating an individualized injury- tions in order to demonstrate ag- erroneous legal reasoning. trial judge, or the defendants, or their in-fact. This error is on display, in the grievement. See e.g. Sweenie v. A.L. In Murchison, the plaintiffs ap- counsel, would consider the district following passage: pealed the issuance of a foundation ‘overcrowded.’ What matters is what “if the plaintiffs’ arguments on the Prime Energy (2008), (“[e]ven if the permit issued to the defendants for the town has determined.” Murchison, merits are correct, then the alleged bylaw under which the planning board their proposed construction of a sin- 96 Mass. App. Ct. at 164-165 (em- bylaw violations would allow a house granted A.L. Prime’s special permit gle-family residence on a three-acre phases added). to be built closer to the plaintiffs’ created and defined a protected inter- lot. The defendants’ property is locat- This passage suggests, erroneously, house than the density provisions of est ... this alone is not a sufficient basis ed across the street from the plaintiffs’ that town meetings and city councils the bylaws permit. The plaintiffs have on which to confer standing.”) (inter- home. enact zoning for the purpose of defin- shown that they are across the street nal citations omitted). “The language The plaintiffs alleged that the ing abutter standing. That is simply from the proposed development. The of a bylaw cannot be sufficient in it- defendants’ proposed single-family not the case. Instead, they are mak- harm to a property owner from having self to confer standing: the creation of residence, as well as the property on ing zoning determinations for the a house across the street closer to his a protected interest (by statute, ordi- which it was to be built, violated the community as a whole, exercising the or her own than is permitted by the nance, bylaw, or otherwise) cannot be Sherborn zoning bylaw’s lot width re- police powers. In certain instances, in density-protective bylaws is different conflated with the additional, indi- quirement. which they create specially protected in kind from that suffered in an undif- vidualized requirements that establish After trial, the Land Court, Schei- interests, these local laws may provide ferentiated fashion by all the residents standing. To conclude that a plaintiff er, J., dismissed the appeal, finding a legal basis for cognizability, but they of the neighborhood. It is sufficiently can derive standing to challenge the that the plaintiffs lacked standing to do not define whether an abutter has particularized to support a claim of issuance of a special permit from the maintain the lawsuit, reasoning, in been harmed or not. standing to challenge the alleged vio- See page 10 MARCH 2020 REBAnews PAGE 3 Spring brings events, opportunities BY JENNIFER L. MARKOWSKI President’s Message you to reach out. The Spring Conference will be held on Monday, May 4, at the I am honored to begin 2020 as REBA’s 295 Devonshire Street, Sixth Floor, Four Points Sheraton in Norwood. For President and I look forward to an event- anyone who has not yet attended these Boston, MA 02110-1266 filled year ahead for our members. As twice-yearly conferences, the full-day schedules often fill up quickly at this www.reba.net schedule includes numerous topical time of year, I would like to take this and timely breakout sessions, lunch opportunity to highlight a selection of with colleagues and friends, as well President upcoming events, opportunities, and as the opportunity to earn 10 Rhode Jennifer L. Markowski resources available this spring. Island and New Hampshire CLE [email protected] REBA’s nineteen practice sections credits. cover all topics and issues related to President-elect In terms of practice resources, I real estate. The sections range in areas Neil D. Golden should also mention REBA Dispute from affordable housing, to litigation, Resolution, which has a panel of retired [email protected] to residential conveyancing, to trusts Immediate Past President and estates, and many more. The chairs Appeals Court and Land Court judges plan for events centered on networking. as well as many experienced attorneys, Paula M. Devereaux of these sections schedule meetings on The Women’s Real Estate Networking substantive topics of interest, many of all of whom are well-versed in resolving [email protected] Group is one such group, hosting which members can participate in via business and real estate disputes. I, and several receptions every year. This year, Treasurer webcast, thanks largely to our Chief many of my colleagues, have utilized the group’s annual fundraiser for the Kendra L. Berardi Information Officer Bob Gaudette. REBA Dispute Resolution neutrals Women’s Lunch Place in Boston will [email protected] Notifications of these meetings go with great success and I can personally be held on Thursday, April 23. This out to members via email and the full attest to the quality and efficiency with Clerk well-attended annual event is open to schedule is available under upcoming which cases are approached. If you Julie P. Barry all real estate professionals and will have a particular matter that is in need [email protected] events on REBA’s website. For members in the Hampden feature Elizabeth Hopkins as a guest of ADR, REBA’s Executive Director, Editor/Executive Director County area, the Residential speaker. All funds raised from the event Peter Wittenborg, can assist in finding Peter Wittenborg Conveyancing Section has scheduled are donated to the Women’s Lunch the right neutral. [email protected] a lunchtime regional affiliate meeting Place. Of course, there are many more on April 15 at Student Prince in For a combination of professional events and resources all of which can Managing Editor/COO Springfield. The meeting, which development and networking, the be accessed on REBA’s website. In Nicole Cohen REBA hosts in partnership with the REBA Spring Conference is a go-to the coming months I will be thinking [email protected] Real Estate Section of the Hampden event. The chairs of the Continuing about ways REBA can be a more Chief Information Officer County Bar Association, will focus on Education Section work throughout valuable resource to its members in all Robert A. Gaudette substantive issues impacting residential the year on programming for the areas of the commonwealth and from [email protected] conveyancers, is one way in which Spring Conference as well the Annual all manner of diverse backgrounds. If REBA reaches out to members in areas Meeting and Conference in early you have ideas or thoughts on how we Accounting Manager outside of Boston. November, and they welcome input can improve the organization, please Joseph Lee Butler In addition to substantive lunches from members. If there is a topic you feel free to email jmarkowski@fmglaw. [email protected] and meetings, some REBA sections would like to hear about, I encourage com or call (617) 807.8962. Legislative Counsel Edward J. Smith [email protected] My cousin Vinnie avoids surgery MISSION STATEMENT BY PAUL F. ALPHEN To advance the practice of real thespian career). He penned a series of estate law by creating and sponsoring inflammatory demand letters to the town My cousin Vin- professional standards, actively manager, the building commissioner and nie, the suburban participating in the legislative the town planner asserting all sorts of real estate attorney, process, creating educational mischief, including violations of his cli- programs and material, and and I met recently ent’s civil rights, unequal treatment un- demonstrating and promoting fair in the North End der the law, injustices and shenanigans. It dealing and good fellowship among before a Celtics came as no surprise to me that the matter members of the real estate bar. game. It was great to MENTORING STATEMENT see him, because “My client provided me To promote the improvement of the I had missed the annual family post- practice of real estate law, the men- Christmas party at our cousin Carmella’s with a six-inch-high pile toring of fellow practitioners is the house. continuing professional responsibility Vinnie filled me in on the current of correspondence with of all REBA members. The officers, foibles of our various relatives and pro- directors and committee members vided me with a painfully detailed de- the town, peppered with are available to respond to member- scription of Aunt Mary’s cruise to Nova ship inquires relative to the Asso- Scotia. Sorry I missed it. correspondence from ciation’s Title Standards, Practice Vinnie swirled his bread around the his former attorney.” Standards, Ethical Standards and residual red sauce on his plate, previ- Forms with the understanding that ously filled with chicken cacciatore, as advice to Association members is he shifted the conversation to his small ©jamesgroup not, of course, a legal option. practice. was not resolved and the town was turn- checked the assessors’ property record “Paulie,” he said, with a mouth filled ing up the heat on the landowner.” cards and flipped through the old files in with bread soaked in sauce, “I have a new I think Vinnie is hilarious, but I in- © 2020 The Real Estate Bar Association the building department. I found a his- for Massachusetts. Materials may not be client who has been in a years-long battle terrupted him. tory of class II used car dealers’ licenses reproduced without permission. with a local building commissioner, who “That sounds like trying to deal with in the selectmen’s records, as the Decem- Postmaster: Send address changes claims that the use of his property for an the medical profession. If you ask for a ber meeting minutes always list the an- to REBA, 295 Devonshire Street, 6th Floor, auto repair shop, and for selling used cars, diagnosis from a surgeon, don’t be sur- Boston MA, 02110 is unlawful. The commissioner is correct prised if the surgeon recommends sur- nual license renewals. I checked the reg- that the uses are not allowed in the zon- gery, even if you don’t need it!” istry of deeds and identified the names of ing district. My client provided me with a “Right. Sometimes you just need the the various owners of the property over six-inch-high pile of correspondence with right physical therapist,” Vinnie replied. the years and found that they were in the the town, peppered with correspondence He went on. “I went through the cli- auto repair business from their corporate (ISSN 01967509), 40 Court St., 5th floor Boston, MA 02108 from his former attorney. It seems his ent’s pile of paperwork. Something in purpose statements on file with the sec- (617) 451-7300 • masslawyersweekly.com former attorney specialized in criminal the pile suggested that the property had retary of state. I then went back to town law (when not working on his part-time been used for auto repair for decades. I See page 10 PAGE 4 REBAnews MARCH 2020 A practice refresher — this stuff really happened!

BY JAMES S. BOLAN many instances a lawyer viewing him/ AND SARA N. HOLDEN herself as the “lawyer for the deal,” or a merely a “scrivener,” is enmeshed in unwaivable conflicts. A corollary is the risk created by “virtual” and internet communica- tions. For example, a lawyer working virtually or via email must be aware that an unintended attorney-client relationship may be created, via email, when legal advice is sought and given. BOLAN HOLDEN To avoid such a creation, use so-called “click through” disclaimers on your Avoiding potholes is a really good website and email. Also, read Mass. R. idea. The following potholes may be Prof. C. 1.18 on prospective clients for lurking: the exposure that lies within. The law of unintended consequences Can you make gifts to lenders and realtors? Are lawyers barred from Who is your client? (Seriously!) providing gifts to their clients for any How do you avoid unintended attor- ©manopjk reason: to gain a foothold for future ney-client relationships? referrals (solicitation or kickback), Who is the client? An LLC owns 156C controls?), there could easily be the lawyer for everyone, individuals to reward for past referrals, to soothe a piece of property. There are two an expectation, spoken or implied, by and entities. That must be avoided. hurt feelings. There are limits on giv- (50/50) members. (Feel free to substi- the person who called that he, not the Do conflicts checks at the outset ing anything of value, remuneration, tute a joint venture, two individuals or LLC, is your client. and throughout an engagement ev- payments or gifts to clients. a general partnership.) One member Make it clear from the outset who ery time a new name appears. The One cannot solicit cases or reward calls in advance of a meeting to say is the client. If it is not clear, stop. “simple” example is representing buy- a “runner” (someone who refers cases that they want to discuss selling the Do not pass “go.” Start over until it ers and sellers (or landlord and ten- to the lawyer), provide anything of property. That member confides that is clear. Was an attorney-client rela- ant) on the same deal within the value to anyone for recommending the the two have not always gotten along tionship created? To whom are duties same office. Or when a seller, a firm lawyer’s services, or provide a “quid pro and that there may be issues in a sale. owed? Try to tamp down the human client, refers a buyer to the firm for quo” (I wonder where that term came You make an appointment. instincts to do good in advance of the representation. The “simple” answer is from) payment to a client. (We are not So, who is your client? The LLC? lawyerly need to do right by determin- “don’t do it.” The law is replete with talking about advancing costs or pro- The two members? The member who ing who is the client and whether a re- examples of convenient or expedient viding financial assistance to a client called you? Why does it matter? lationship been created before you step attempts to help out the parties by in litigation matters.) In addition to direct conflicts that in the pothole. having one lawyer. (“It saves money.” Fee-sharing is still not permit- may arise (what if there is an LLC, Conflict risks abound. There “This is standard stuff.” “If there’s a ted with nonlawyers (or even lawyers but no operating agreement, so c is often an expectation that you are problem, we’ll deal with it.”) In too See page 11

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100 Summer Street • Boston, MA 02110 • 617.488.8206 • PIERCEATWOOD.COM MARCH 2020 REBAnews PAGE 5 HUD offers guidance on assistance animals

BY KATHERINE G. BRADY the last one will incur a certain presumption against the requestor). Earlier this year, HUD is- Disability sued long-awaited The resident for whom the request is guidance to hous- being made must have a disability and a ing providers on disability-related need for the accommo- assessing reason- dation. able accommoda- • Does the person have an observable tion requests for disability or does the housing provider (or assistance animals. agent making the determination for the Under federal and state fair housing housing provider) already have informa- laws, housing providers, including com- tion giving them reason to believe that the munity associations and landlords and person has a disability? (Question 5.) their agents, are required to provide a • If no, has the person requesting the change to a rule or policy when such an accommodation provided information accommodation is necessary to afford a that reasonably supports that the person disabled person equal opportunity to use seeking the accommodation has a dis- or enjoy their housing. Allowing an as- ability and/or disability-related need? sistance animal in a “no pets” building (Question 6.) ©IgorVetushko is a common example. In recent years, • If yes to either of the above, has the requests for assistance animals have in- person requesting the accommodation A common source of frustration has note and has stated that documentation creased, and boards and managers fre- provided information that reasonably sup- been determining what documentation from the internet (such as websites that quently inquire: What documentation ports that the animal does work, performs of a disability and disability-related need sell certificates and registrations) is not, can I request? Are online certificates tasks, provides assistance and/or provides is sufficient and reliable. In particular, the by itself, sufficient to reliably establish acceptable documentation of a disabil- therapeutic emotional support with respect proliferation of internet certificates has that an individual has a nonobservable ity and/or disability-related need? What to the individual’s disability? (Question 7.) drawn ire and skepticism. HUD took See page 8 types of animals must we allow? Ferrets? Pitbulls? What if the assistance animal damages the common areas? The new HUD guidance attempts to address some of these questions and provide best practices on assessing reasonable accommodation requests for an assistance animal. (HUD’s FHEO No- tice-2020-01 and a fact sheet on its As- sistance Animals Notice can be accessed at its website.) Assessing a request The guidance from HUD is framed around eight questions intended to provide a roadmap for evaluating a request for a reasonable accommodation for an assistance animal, which includes both service animals and other support animals. To begin, HUD starts with questions to determine if the animal is a service animal: a dog that is trained for the benefit of an individual with a disability (questions 1 through 3). Service animals are protected not only under Fair Housing Laws, but also allowed entry into places of public accommodation under the Americans with Disabilities Act (ADA). More often, boards and managers receive requests concerning a support animal/ comfort animal/companion animal (or other type of assistance animal). We, therefore, turn and dive more deeply into the steps (questions 4 through 8) and the guidance HUD offers in evaluating those requests: The ask There must be a request for an accommodation. HUD’s guidance includes a publication of information for residents seeking an accommodation for assistance animals that should be available to residents, but boards and managers cannot mandate that residents use it to make a request. As we have advised boards and managers in the past, you cannot mandate the use of any specific form. A request does not have to be in writing; nor must it include the words “reasonable accommodation.” It can even be made by someone other than the individual need- ing the accommodation. Furthermore, the request can be made at any time: before or after move-in, before or after acquiring the assistance animal, before or after a notice of violating a pet restriction is issued (although PAGE 6 REBAnews MARCH 2020 Zombie foreclosure case ‘Erdry’ resurfaces

BY JOEL A. STEIN display advertising in 80 percent of its foreclosures. The seemingly In the above referenced case of dormant decision Property Acquisition Group, LLC v. of the U.S. Bank- Kenneth Ivester Third and another, the ruptcy Court in plaintiff, Property Acquisition Group, Edry v. R.I. Hos- LLC, was the purchaser at a foreclo- pital Trust Na- sure sale. The case was decided by the tional Bank (201 Massachusetts Appeals Court on ap- B.R. 604 (BANK) peal from an Essex Superior Court D Mass. 1996) decision allowing the mortgagee’s mo- has been revitalized by the holding tion for summary judgment dismissing by the Appeals Court in Property Ac- the mortgagor’s claim that the mort- quistion Group, LLC v. Kenneth Ivester gagee failed to comply with its duty Third and another, 17-P-1518 (2019). to exercise good faith and reasonable The obligation of the mortgagee to diligence, to protect the interest of the obtain the highest price at a foreclo- mortgagors. sure sale was addressed in cases across The Ivesters purchased their prop- the country in the 1980s. In the case of ©nikkytok erty at 245 Salem Street in Lynnfield In re Ruebeck (1985), Judge Lavien not- for $399,000 in 2003. They refinanced ed that the Bankruptcy Court would majority, noted that “when its state’s • the bank failed to respond to the be satisfied so long as all due effort was in 2006 with a first mortgage in the judicially and legislatively crafted debtors’ attempts to resolve the defi- amount of $302,000 and a second made to obtain a fair price for the prop- rules” governing the foreclosure pro- ciency; erty. The issues raised in this decision, loan in the amount of $50,000. They cess are followed, it is “black letter law” • the foreclosure sale was conduct- including advertising in the real estate stopped payments on the loan in 2013. that mere inadequacy of the foreclo- ed by a paralegal; section of the Sunday paper, obtaining The foreclosure sale was conducted sure sales price is no basis for setting • the bank made no effort to seek appraisals prior to the foreclosure and with an opening bid of $329,000. Two the sale aside. However, Justice Scalia’s the debtors permission for potential making certain that the mortgagor and parties bid and the successful bidder, other interested parties received notice discussion noted that “a state’s interest bidders to inspect the inside of the by the plaintiff, was in the amount of of adjournments, became regular prac- encompasses more than mere statutory home; $355,000. tice for the foreclosure bar. requirements.” • the bank made no effort to deter- The property consisted of 4.57 acres In 1994, the U.S. Supreme Court In his opinion in Edry, Justice mine the fair market value of the prop- of which approximately half was build- decision in BFP v. Resolution Trust Quinan, unable to void the sale solely erty; and, most importantly, able, the remainder being wetland. The Corp. held that the value of foreclosed because the foreclosure price was only • the bank’s law firm specifically property was improved with a single- property is dictated by the foreclosure 45 percent of the fair market value, re- instructed the auctioneer not to use family home. The Ivesters contended sale itself, not the property’s fair mar- lied on other factors, including the fol- display advertising in providing notice that the property could be developed; ket value. Justice Scalia, writing for the lowing: of the sale, when the auctioneer used See page 9

Is Rhode Island the next attorney state?

CONTINUED FROM PAGE 1 However, Rhode Island’s Title Insur- be considered the practice of law: (a) con- argued that “[t]he process of conveyanc- ance Act explicitly gives title insurance ducting a title examination to determine ing encompasses a number of sophisticated Court adopt this decision, which could agents the authority to perform various marketability of title; (b) conducting a real functions that require an attorney to ad- mean that you will see more attorneys at real estate services, including the han- estate closing; and (c) drafting deeds, resi- equately protect the interests of the parties the closing table. dling of real estate closings. R.I. Gen. dency affidavits, and powers of attorney on to a real estate transaction.” Brief for Con- The case heard ‘round Rhode Island Laws Ann. § 27-2.6-3(17). necticut Attorneys Title Insurance Com- In 2017, the Unauthorized Practice Ultimately, the Supreme Court will The Rhode Island pany as Amicus Curiae, p. 14, In re Daniel of Law Committee received a complaint be tasked with defining the practice of S. Balkun and Balkun Title & Closing, Inc. from a Rhode Island attorney alleging that law in Rhode Island as it has “the ulti- Supreme Court (UPLC-2017-1, June 7, 2018). Parties dis- a title agent, Daniel S. Balkun, and his title mate and exclusive authority to deter- agreeing with the committee’s recommen- company, Balkun Title & Closing, Inc., mine what does and does not constitute is contemplating dation, including the U.S. Department of engaged in the unauthorized practice of the practice of law within the state and Justice and the Federal Trade Commission, law by representing and preparing docu- to regulate those people qualified to en- whether the act of also submitted amicus briefs arguing that ments for the sellers in connection with a gage in the practice.” In re Town of Little many closing tasks are administrative and real estate transaction. Balkun is not an at- Compton, 37 A.3d 85, 88 (R.I. 2012). conducting a closing do not require the expertise of an attorney. torney and is not admitted to practice law The committee also found the Massa- is the practice of They continued to argue that the use of an in Rhode Island. Similarly, his title compa- chusetts Supreme Judicial Court case Real attorney in a closing transaction would lead ny is not organized as a law firm but rather Estate Bar Ass’n for Massachusetts, Inc. v. Nat’l law, requiring the to consumers paying inflated closing costs. Real Estate Info. Servs. to be persuasive in its as a standard corporation. Both Balkun What’s next? and his title company were engaged in a analysis. The committee found that “the le- involvement of an number of duties and activities related to gal landscape in Massachusetts [at the time The Rhode Island Supreme Court the closing transaction, including: (a) con- the case was decided] appears to have been attorney. heard oral arguments for this case in De- ducting title searches and examinations; much like it is today in Rhode Island,” and cember 2019. It is clear that the amicus (b) issuing title insurance policies; (c) con- that the Massachusetts Supreme Judicial briefs received by the court were taken ducting real estate closings; (d) providing Court was faced with similar precedent to into consideration. Chief Justice Paul A. settlement services; and (e) preparing legal that in Rhode Island. In re Daniel S. Balkun behalf of parties to a real estate transaction. Suttell said, “I think we can safely say it’s documents, including deeds, residency af- and Balkun Title & Closing, Inc. (UPLC- Other parties weigh in always better to have an attorney… the fidavits, and powers of attorney. 2017-1, June 7, 2018) at 37. In that case, the question is the cost.” The court is expect- The Rhode Island Supreme Court per- In making a determination regarding court determined that “a lawyer is a neces- ed to render a decision in the matter in mitted parties to submit amicus briefs that what, if any, activities within a real estate sary participant at the closing to direct the the coming months. Stay tuned… address whether the committee’s recom- transaction constitute the practice of law, proper transfer of title and consideration Ashley Sadler Fischer is compliance counsel the committee sought guidance from and to document the transaction” and that mendation should be upheld by the court. at CATIC, where she serves as a resource on Rhode Island case law, as well as case law an attorney “must play a meaningful role in Such briefs were submitted by parties on emerging industry issues and assists with fed- from sister jurisdictions. The committee connection with the conveyancing transac- both sides of the aisle. Connecticut Attor- eral and state compliance concerns. Ashley has found that the Rhode Island Supreme tion that the closing is intended to finalize.” neys Title Insurance Company (CATIC) been recognized as a Rising Star by the Massa- Court has determined that the practice Real Estate Bar Ass’n for Massachusetts, Inc., was among the parties, and notably the of law includes conveyancing. See RI Bar 459 Mass. at 534. only title insurance underwriter, to submit chusetts Mortgage Bankers Association and the Ass’n v. Automobile Service Ass’n, 179 A. Following its analysis, the committee an amicus urging the court to adopt the Rhode Island Mortgage Bankers Association. 139, 144-145 (R.I., 1935). argued that the following practices should committee’s recommendations. CATIC You can contact her at [email protected]. MARCH 2020 REBAnews PAGE 7

Women’s Networking Group reception at Wellesley Bank

The REBA Women’s Networking Group hosted a reception recently at Wellesley Bank with guest speaker Janice Hayes-Cha, a local artist. Hayes-Cha creates vibrant mixed-media collages from recycled greeting cards. She began making this type of art with get-well cards while she was recovering from cancer.

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Contact a REBA/DR Case Manager today! 295 Devonshire Street, Sixth Floor, Boston, MA 02110 617-854-7558 ♦ [email protected] www.disputesolution.net PAGE 8 REBAnews MARCH 2020 DEP announces standards for PFAS ‘forever’ chemicals

BY NATHANIEL STEVENS out Massachusetts. To address PFAS, MassDEP is pro- Last Decem- mulgating final regulations in its waste ber, the Massa- cleanup program and issuing proposed chusetts Depart- regulations in its public drinking water ment of Environ- program. mental Protection As of Dec. 27, 2019, parties re- announced final as sponsible for cleaning up contaminated well as proposed waste sites in Massachusetts will have regulations to ad- to clean up groundwater that could be dress per- and used as drinking water to meet a new polyfluoroalkyl substances, or PFAS, a standard in the Massachusetts Con- family of man-made chemicals known tingency Plan or “MCP” (310 CMR as the “forever chemicals” due to their 40.000) of 20 parts per trillion (ppt) for persistence in the environment. Only the sum of six PFAS compounds. a handful of other states are regulating There are also new MCP standards PFAS. for the cleanup of soils, with specific Numbering in the thousands with standards for each of the six PFAS. many created over 50 years ago, PFAS These PFAS are perfluorodecanoic are water soluble, extremely stable and acid (PFDA), perfluoroheptanoic acid persistent, so do not fully degrade. These (PFHpA), perfluorohexane sulfonic properties make them popular for use in acid (PFHxS), perfluorononanoic acid ©nikkytok a wide variety of products, such as water (PFNA), perfluorooctanesulfonic acid repellent fabrics, nonstick coatings, con- (ppt) for these six PFAS compounds. More information about the proposed sumer products, and firefighting foam. Presently, there is no Federal MCL for regulations are available on MassDEP’s Studies show, however, that expo- Only a handful of PFAS, only an EPA health advisory for website. sure to some PFAS at elevated levels PFOA and PFOS of 70 ppt. may cause a variety of health issues, in- other states are Water suppliers will have to collect A senior associate at McGregor & Legere, P.C., cluding development effects on fetuses samples for PFAS and report to Mass- Nathaniel Stevens handles a broad range of and infants and effects on the thyroid, regulating PFAS. DEP. Depending on the level of PFAS environmental and land use matters, from liver and kidneys and certain hormones administrative law to litigation. He has helped and the immune system. Certain PFAS found, the water supplier may have to meet additional testing, monitoring, clients with environmental issues including have been discovered to be quite toxic (PFOS), and perfluorooctanoic acid and reporting requirements. The imple- permitting, development, contamination, trans- even at very low levels. According to (PFOA). actions, conservation, real estate restrictions, MassDEP’s website, scientists and mentation of these new drinking water Wishing to coordinate efforts, underground tanks, water supply, water pollu- regulators are still working to study and MassDEP’s drinking water program is regulations would be staggered, based tion, subdivision control, tidelands licensing, better understand the health risks posed proposing new drinking water standards on the population served and type of Boston and state zoning, coastal and inland by exposures to PFAS. for the same six PFAS compounds. system. wetlands, stormwater, air pollution and energy Recently, PFAS have been discov- MassDEP proposes setting a maximum Public hearings on these draft facility siting. He can be contacted at NSte- ered in public drinking water supplies in contaminant level (MCL) for drinking drinking water regulations (310 CMR at least fourteen communities through- water of the sum of 20 parts per trillion 22.00) will be held throughout the state. [email protected]. HUD offers guidance on assistance animals CONTINUED FROM PAGE 5 assistance animal, boards and managers should engage in a good-faith dialogue Why I am a REBA member… disability or disability-related need for with the resident, including pointing I left Massachusetts to work in California for a period of time and, with an assistance animal. A health care pro- them to HUD guidance for individuals my return, have an even greater level of appreciation for the special space that fessional, with personal knowledge of the on making a request. individual, however, could provide suffi- REBA offers for real estate colleagues to come together, share information and ciently reliable documentation to estab- Excessive burden advance the practice. REBA offers highly useful educational opportunities and lish a disability or disability-related need, While cats and dogs are the most productive and interesting networking events. I know REBA will continue to even if the health services are delivered common type of animal for which a offer an important place for me to stay informed, be engaged and be part of the remotely, including over the internet. request is made, we know boards and development of real estate law. The key question here: does the inter- managers have seen the gamut of re- Katherine Brady Moriarty, Troyer & Malloy, Boston Member since 2006 The guidance from HUD is framed around eight questions intended to provide a roadmap requestor has the substantial burden process unusual animal requests. That of demonstrating a disability-related said, while the recent guidance is helpful, for evaluating a request for a reasonable therapeutic need for the specific animal we know questions about how to apply or type of animal. Reptiles (other than and assess accommodation requests will accommodation for an assistance animal, turtles), barnyard animals, monkeys, persist given their highly fact-specific kangaroos and other nondomesticated nature. If you have any questions about a which includes both service animals and other animals fall into the category of “unique request you have received or how best to animals.” support animals. On a related note, another frequent operationalize the latest guidance from question is whether a board can charge HUD into your board or management a fee for the animal. The guidance in practice, contact us. this regard remains the same and clear: An associate in the Boston and Braintree firm net documentation (or any documen- quests from monkeys to snakes to fer- assistance animals are not pets and resi- tation for that matter) provide an in- rets and every creature in between. dents cannot be charged a fee (or de- of Moriarty, Troyer & Malloy LLC, Kate Brady dication that there has been a personal What if the proposed animal poses a di- posit). Charges for damages caused by possesses years of experience in condomin- assessment of the disability or disabili- rect threat, danger or excessive burden? assistance animals are acceptable, pro- ium and real estate litigation and recognized ty-related need such that is sufficiently The new guidance from HUD separates vided that the damages are assessed in expertise in fair housing, affordable housing reliable? When it comes to an online what it terms “animals commonly kept a manner consistent with how they oth- and the myriad of statutes and regulations certificate mill, HUD’s guidance helps in households” and “unique animals.” erwise chargeable to a resident. that apply. In her litigation practice, Kate has us answer “no” to that question. • Is the animal commonly kept in handled complex transitional litigation, includ- As always, before denying a rea- households? (Question 8.) Bottom line ing phasing disputes, construction defect sonable accommodation due to lack of If the animal is not one that is This guidance, at long last, helps pro- claims and related matters. Kate can be con- information about an individual’s dis- commonly kept in households and is a vide some clarity on how to assess the ability or disability-related need for an “unique animal,” then HUD states that reliability of internet documentation and tacted at [email protected]. MARCH 2020 REBAnews PAGE 9 Zombie foreclosure case ‘Erdry’ resurfaces CONTINUED FROM PAGE 6 What should we take away from this Why I am a REBA member… decision? however, any development would re- First off, Ivester, unlike Ruebeck quire the installation of a new road. I have been a member of REBA and its precursor, the Massachusetts Con- and Edry, is not a bankruptcy case and Fannie Mae relied on the property’s veyancers Association, for forty years, and a member of the Board of Directors no claim was made to attack the fore- 2015 assessed value of $361,900. The for close to thirty years. My relationship with REBA has outlasted my first Ivesters’ expert appraised the property marriage, several law partnerships, my thyroid, a gallbladder, most of my hair closure as a fraudulent transfer under at $975,000 and the successful bid- and my left knee. REBA is a daily companion, the forms and standards never state law. Secondly, as the foreclosure der submitted an appraisal valuing the far from view. was not held to be invalid, this case is property at $385,000. The court citing Equally important are the people who are REBA. I was blessed to serve on concerning primarily for lenders and Edry noted that Fannie Mae took no the MCA Board with mentors and legends in the conveyancing world, includ- foreclosure attorneys. It would seem steps to determine the fair market val- ing Henry Thayer, Lou Eno, Norm Byrnes and Syd Smithers. For years, board clear that best practice would require ue of the property before the auction, meetings meant spending time with Jon Davis, whose wisdom and passion I obtaining an appraisal in many cases. and that the mortgagee must in some recall each time my thoughts turn to REBA. However, the facts here are so specif- way ascertain the fair market value of As a longtime board member, it is a marvel to watch each new president ic, that even an appraiser might have bring their special touch to the job succeeding seamlessly from one year to the missed that the property should not next. Credit Peter and Nicole, and the many gifted people who have given their be assessed as a single-family home, It would seem time and energy to the job. but as developable property. Should When I was president of the MCA in 1994, the office was a single room there be concern with any single fam- clear that best with a part-time administrator. The present REBA is in many ways the brain- ily house which lies upon a lot that child of Peter Wittenborg, who has broadened REBA’s scope, with REBA Dis- could possibly be subdivided? practice would pute Resolution, additional sections/committees, and neverending efforts to There is no indication in the deci- expand REBA’s membership and influence. Peter asked me onto the board in sion as to whether the plaintiff intends 1989, and for that I am eternally grateful. require obtaining an to develop the property. However, in Lastly, being an active member of REBA has afforded me opportunities not this case, the plaintiff is an LLC and available in daily practice. I have prepared amicus briefs, written numerous ar- appraisal in many its Certificate of Organization notes ticles for REBA News, testified on and drafted legislation, met with members that the character of the business is cases. of the Massachusetts Congressional Delegation in Washington, D.C., and been active in different sections/committees. Being out of your comfort zone is not to acquire, sell, develop, manage and always easy, but try it … it may just change your life. otherwise deal with and operate real Joel A. Stein estate of any kind. Notwithstanding this, the court held that the purchaser the property in order to satisfy its duty Law Office of Joel A. Stein, Norwell of good faith and reasonable diligence Member since 1978 at the foreclosure sale was a bona fide in selling the property. purchaser. The court, citing Edry, noted that it A former president of the association, Joel is the duty of the mortgagee to do what Stein concentrates his practice in real estate a reasonable person must do to achieve have superior title to the purchaser be- able diligence. Although the purchaser law with an emphasis on title examination, the highest price possible to protect cause the action was commenced after knew that the property had value above title insurance and foreclosure. He is a 2006 the interest of the mortgagor. In this the sale had been completed and the that bid at the sale, the purchaser is not recipient of the association’s highest honor, case, where the property had poten- foreclosure deed had been recorded. responsible for knowing that Fannie the Richard B. Johnson Award, and founding tial for development, the mortgagee The Ivesters showed no evidence that Mae had failed to exercise good faith editor of the REBA Guide to the Massachu- must consider that potential and share the purchaser knew or should have and reasonable diligence. The case was it with prospective bidders. However, known of Fannie Mae’s alleged fail- remanded to the Superior Court for setts Registries of Deeds. Joel can be con- the court held that the Ivesters did not ure to exercise good faith and reason- the issue of damages. tacted at [email protected].

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Visit us online www.reba.net The REBA Women’s Networking Group hosted a reception recently at Wellesley Bank with guest speaker Janice Hayes-Cha, a local artist. PAGE 10 REBAnews MARCH 2020 Taking a stand[ing] against ‘Murchison v. Sherborn Board of Appeals’

CONTINUED FROM PAGE 2 then that pesky neighbor who always were issued in Massachusetts, of which complains about the noise from your 14,585 were for new single-family language of a relevant bylaw, without children playing in the backyard will homes. In contrast, in 2018, 17,044 Why I am a REBA member… more, eliminates the requirement that be just as able to run you through the residential building permits were is- After law school I clerked at a plaintiff ‘plausibly demonstrate’ a litigation ringer, no matter how base- sued, of which a mere 7,169 were for the Land Court, and it was an cognizable interest in order to estab- less the claim. single-family homes.” Id. at 13. easy decision to join REBA. Little lish that he is ‘aggrieved.’” Id., quoting Beyond the foregoing, it is no se- If Murchison stands, then these did I know just how rewarding Standerwick v. Zoning Bd. of Appeals of cret that Massachusetts is in the mid- long-term trends and the current my membership would be, both Andover (2006). dle of a housing crisis. Don’t take our housing crisis will only be exacerbat- personally and professionally. The practical effects of the Ap- word for it; the Home Builders and ed, and significantly so. The educational programming is peals Court’s legal errors could be Remodelers Association of Massa- REBA and The Abstract Club second to none. The membership widespread and alarming. From our chusetts, Inc. (the HBRAMA), which have requested that the SJC intercede, is dynamic and informed. Through perspective, abutters will be able to also filed an amicus brief, provides the because apart from having such dire my membership and active stymie development with nothing cold hard facts. “In the last decade, practical effects, the Appeals Court’s participation I have met new more than the incantation of the word the commonwealth had the fourth decision also happens to run afoul of friends and colleagues and grown “density.” Every zoning appeal by an lowest rate of housing production in the standard for standing as previous- as a professional. I cannot imagine abutter (which represents the vast the nation.” HBRAMA Amicus Brief, ly articulated by the appellate courts being a real estate attorney without majority of appeals) will have to be p. 11. “No matter how many current in Massachusetts. the support of REBA and its terrific determined on the merits of the case, homeowners put their houses on the Abutters already enjoy a rebuttable leadership and members. REBA is, as a standing inquiry would be effec- market, there simply is not enough presumption of standing under the by far, my most valued professional tively resolved in the abutter’s favor, housing to meet demand, moderate Zoning Act. Hopefully, the SJC will association. no matter how conjectural/specula- prices, or close the affordability gap. decide that demonstrating a particu- Robert Keith Hopkins tive/hypothetical the alleged injury to Massachusetts needs new home con- larized injury-in-fact is still required Phillips & Angley, Boston the abutter may be. struction of all types that individu- in the commonwealth as well. Member since 2013 In cases in which the lawfulness als and families of all incomes can of a permitted development’s density afford.” Id. “The Metropolitan Area Nick Shapiro and Robbie Hopkins practice Nick appears predominantly before the Land is at-issue, this means years of delay Planning Council …, estimates that with the Boston firm of Phillips & Angley. Court. However, in his time at Phillips & Angley, and tens of thousands to millions of more than 400,000 new housing units Robbie co-chairs the REBA New Lawyers Sec- Nick has argued all manner of motions and dollars in additional costs, if not the will be needed by the year 2040 if the tion; Nick co-chairs the Land Use and Zoning appeals before every level of the Massachu- death knells tolled for these projects. region is to keep growing its economic Section. Robbie concentrates his practice on setts judiciary, from the District Court to the And please do not be lulled into base.” Id. at p. 12. zoning, land use and real estate litigation. Supreme Judicial Court. During his tenure at the false idea that only large develop- Alarmingly, not only do we not Prior to joining the firm, he was a law clerk to Phillips & Angley, he has argued eight appeals ers will suffer from this decision. Ev- presently have enough housing supply, Land Court Chief Justice Judith C. Cutler. In before the Appeals Court and the SJC. In ery property owner would be at risk. but the rate of new home construction 2019, he was honored with the REBA Emerg- 2017, he was honored with the REBA Emerg- If you get a special permit to install is down over the last 15 years. “In 2005, ing Leader Award. Robbie can be contacted at ing Leader Award. Nick can be contacted at an in-ground pool in your backyard, 25,549 residential building permits [email protected]. [email protected]. My cousin Vinnie avoids surgery

CONTINUED FROM PAGE 3 Why I am a REBA member… hall to wade through copies of the zoning bylaw from the past 30 years to de- On the first day of my first job termine when the uses became unlawful as an attorney, in 1985, I became in the zoning district. a member of the Massachusetts “Turns out the uses are protected as Conveyancers Association. Having lawfully preexisting nonconforming uses. the Standards and Forms to refer I bundled together my evidence and had to has been invaluable to my small a cup of coffee with the building commis- practice; having them to rely upon sioner and the town planner. Case closed.” is like being able to run something I was nodding my head in the af- by an infallible seasoned expert. The firmative throughout his story. His ap- spring and fall meetings provide proach was spot-on, and second nature us with the opportunity to break for a land use guy. bread with our brothers and sisters, and they are an essential source of Vinnie concluded: “Like most of our CLE. The case law updates by Phil brethren, I like to think that I am pretty Lapatin are alone worth the price good at ‘issue identification,’ and I try to of admission. I have no idea how send prospective clients in the right di- anyone practices real estate related rection. I find that even when I turn peo- law without the resources and CLE ple away and recommend that they see provided by REBA. another specialist, it is not uncommon to Paul F. Alphen hear from them again in the future when Alphen & Santos PC, West- they are dealing with a real estate issue, ford which is one of the benefits of practicing Member since 1985 for a long time. I wish all physicians were better at issue identification.” I couldn’t agree with him more. and commercial real estate development, land use regulation, administrative law, real estate A former REBA president, Paul Alphen cur- transactional practice and title examination. rently serves on the association’s executive As entertaining as he finds the practice of committee and co-chairs the long-range plan- law, Paul enjoys numerous hobbies, including ning committee. He is also a member of the messing around with his power boats and Phil Lapatin, pictured here, will present an hour-long breakout session on recent case law at REBA’s executive committee of the Abstract Club. He fulfilling his bucket list of visiting every Major Spring Conference May 4 in Norwood. is a partner in the Westford firm of Alphen & League ballpark. Paul can be contacted at Santos, P.C., and concentrates in residential [email protected].

Visit us online www.reba.net MARCH 2020 REBAnews PAGE 11 SJC to address proper recipient of unidentified IOLTA funds

CONTINUED FROM PAGE 1 The IOLTA Committee contends allows people to search for property that and take appropriate disciplinary action. the SJC’s inherent authority to regu- has been turned over to the Treasury, as The IOLTA Committee, on the other for REBA members. late the practice of law extends to well as advertising campaigns that en- hand, is uniquely situated to recognize The Board of Bar Overseers and controlling the disposition of uniden- courage people to consult the website. and notify the BBO of those issues. the Clients’ Security Board and Fund tified IOLTA funds. It follows then, The Treasurer’s Office notes it The CSB encourages the court to also filed amicus briefs. the committee claims, that the trea- currently holds funds from 572 IOL- amend Rule 1.15 to require reporting The case arises out of disciplinary TA accounts and has returned IOLTA unidentified IOLTA funds to an ap- proceedings against Gregory Olcho- funds to 58 owners on prior occasions. propriate authority to investigate the wski. As a part of his disbarment, the The IOLTA Committee The IOLTA Committee argues funds’ owners and, provided no own- SJC ordered Olchowski to close his the organizations under the judiciary, ers are identified, specify the funds IOLTA accounts and return the funds contends the SJC’s i.e., the BBO, CSB and the IOLTA then go to the IOLTA Committee. to their owners. Olchowski could not Committee, have experience review- In addition to the amicus briefs, the identify the owners of funds in his inherent authority ing lawyers’ files, financial records and Massachusetts Law Reform Institute IOLTA accounts. other resources to locate the owners submitted an amicus letter, joined by 12 After extensive efforts by his ac- to regulate the of IOLTA funds, making them the other legal services programs, support- countant, his attorney, and the Office better choice to search for and handle ing the joint bar brief. Driving home the of Bar Counsel to identify the own- practice of law claims by owners. substantial need for legal services fund- ers failed, Olchowski’s attorney filed a That approach, the committee ing and the importance of the IOLTA motion in the single justice session to extends to controlling remit the unidentified IOLTA funds the disposition of claims, is far more likely to find the program, the letter notes that due to the to the IOLTA Committee. The trea- owners than the Treasurer’s Office lack of funding, legal aid programs in surer intervened and opposed the mo- unidentified IOLTA website, which has only the attorney’s Massachusetts are forced to turn away tion. The single justice then reported or law firm’s name for the IOLTA ac- 60 percent of income-eligible clients. the matter to the full court. funds. count, not the funds’ owners’ names. Oral argument in Olchowski was Central to the case is whether un- The amicus briefs raise several ad- held on Feb. 11, 2020, and a decision identified IOLTA funds meet Chapter ditional points. The REBA, BBA and is pending. Those involved with the 200A’s definition of abandoned prop- MBA brief stresses the importance management of IOLTA accounts will surer’s attempt to control an aspect erty and, therefore, must be turned of attorney-client confidences to the want to keep an eye out for the de- of the IOLTA program is a violation over to the treasurer under the law. practice of law and argues that inter- cision as it could change the require- of the separation of powers under the The IOLTA Committee argues that preting Chapter 200A to cover un- ments under Rule 1.15 for maintain- Massachusetts Constitution and in because there is no known owner of the identified funds in IOLTA accounts ing and closing IOLTA accounts. conflict with the court’s authority. would open the door to significant in- funds and there is a regular transfer of A founding co-chair of the REBA Environmen- interest from the account, the uniden- The treasurer responds that there is trusion by the treasurer into attorney- tal Law Section, Mary Ryan is a partner in the tified funds do not meet the statutory no separation of power concern if the client confidences. litigation department of the Boston law firm of definition of abandoned property. statute is interpreted to cover uniden- The joint bar brief explains that Nutter, and a member of the land use group. The treasurer counters that the tified IOLTA funds. Because neither the treasurer’s extensive audit rights Her practice includes substantial trial and ap- broad language of Chapter 200A Rule 1.15 nor any other SJC rule speci- under the statute would threaten pellate cases in the state and federal court, should be interpreted to cover the un- fies the disposition of unidentified IOL- those confidences. The brief posits particularly in environmental litigation, as well identified funds in IOLTA accounts. TA funds, there is no conflict with the that investigation into, and adminis- as administrative hearings and proceedings. According to the treasurer, the IOL- SJC’s rules. And without such a conflict, tration of, the unidentified funds by Her email contact is [email protected]. TA Committee’s interpretation is in- the treasurer argues, there is no viola- entities under the judiciary would not Micah Miller is a partner in Nutter’s litigation consistent with the statute as a whole tion of the separation of powers. raise the same concerns. department. Clients rely on Micah’s guidance and would result in an ineffective stat- In addition to the legal issues, the The BBO’s brief points out that a in a variety of litigation matters, particularly ute that excludes numerous kinds of parties dispute who, as a practical lawyer’s inability to identify IOLTA accounts, beyond just IOLTA, that the matter, is best suited to find the own- funds’ owners may raise disciplinary is- in intellectual property litigation. Micah is act is clearly intended to cover. ers of unidentified IOLTA funds. sues, which are the exclusive province well-versed in assisting clients at all stages Also at issue is the SJC’s author- The Treasurer’s Office points to its of the court and handled by the BBO. of litigation, including pre-filing investigations, ity over the practice of law and that existing resources for helping people find If the unidentified IOLTA funds are document collection and production, technical authority’s interplay with the Legisla- their abandoned and unclaimed proper- turned over to the treasurer without no- expert discovery, claim construction, and trial. ture’s power. ty. Those resources include a website that tice to the BBO, it cannot investigate Micah’s email address is [email protected]. A practice refresher — this stuff really happened!

CONTINUED FROM PAGE 4 unless permitted by law and the client have a WISP (written information se- firm instructions, particularly distrib- is independently represented in mak- curity program) in place. See G.L.c. uting funds. Even a warning on email in the absence of appropriate disclo- ing the agreement, or settle a claim for 93H; 201 C.M.R. 17 et seq. helps: “WIRE FRAUD ALERT. If sures). But a lawyer was permitted to such liability with an unrepresented you receive an e-mail from this office make a gift to a client so a child could client or former client without first requesting that you wire or otherwise get medical-care costs covered, so long advising that person in writing that One must take transfer funds, you must confirm the as the motive was truly of a charitable independent representation is appro- request and any corresponding in- origin and there was no expectation of priate in connection therewith.” A gift reasonable steps to structions by telephone with this of- repayment (contrary to the usual rule of value to a disgruntled client might fice before you initiate any transfer. of repayment) and the lawyer had al- not get hacked and be seen as an attempt to prospectively E-mail accounts of attorneys, other ready been retained, so it was not an limit a claim for malpractice and run professionals and businesses are being inducement to retain counsel. On the up against Rule 1.8. not expose client other hand, if one is donating part of targeted by hackers in an attempt to the fee simply to keep the client happy, Getting hacked funds or confidential initiate fraudulent wire requests.” to induce the client to refer future cli- Under Rule 1.1, to maintain “the information to Jim Bolan and Sara Holden are partners with ents to him, to improve a firm’s good requisite knowledge and skill, a law- Brecher, Wyner, Simons, Fox & Bolan, LLP, will, or for other business consider- yer should keep abreast of changes disclosure. an “AV” rated firm with a principal office in ations, the gift would no longer be in the law and its practice, includ- Newton. They represent lawyers and law firms charitable in nature. ing the benefits and risks associated in Board of Bar Overseers and malpractice There are opinions that permit a with relevant technology, and engage matters, partnership breakups, departures and lawyer to make gifts to clients “in ap- in continuing study and education.” This is the place where advice is law firm litigation. They also provide counsel preciation of past business” (such as Comment 8. Thus, one must take rea- simple: consult a competent IT pro- to local, national and transnational lawyers Christmas baskets), but not as rewards sonable steps to not get hacked and fessional about data security risks. and law firms on professional responsibility, for referrals. This is all the classic not expose client funds or confidential Don’t email wiring instructions, use practice and ethics matters, malpractice de- “slippery slope” and very fact-depen- information to disclosure. Being dili- the fax. Verify the persons with whom fense and prevention, and risk management dent in the end. gent in protecting computer data (for you are communicating. Like a good and law firm audits. Jim can be contacted at Lastly, one cannot “make an agree- example, not exposing your laptop to carpenter, measure twice and cut once. ment prospectively limiting the law- data loss) is key. In Massachusetts, Check and recheck. A simple phone [email protected]; Sara can be contacted yer’s liability to a client for malpractice under the Data Privacy Act, one must call to the client or the bank will con- at [email protected]. PAGE 12 REBAnews MARCH 2020

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