Practicing with Professionalism Program Materials

SEMINAR

FACULTY

Amy Anthony, Esq. Volunteer Lawyers Project of the Boston Bar Association (VLP), Boston

Christa A. Arcos, Esq. Arcos Law Office, Stoneham

James M. Baron Law Office of James M. Baron, Waltham

Lucas M. Blackadar, Esq. Arts & Business Council of Greater Boston, Brighton

Barbara J. Bowe, LICSW Lawyers Concerned for Lawyers, Inc., Boston

Hon. Dennis J. Curran Superior Court, Commonwealth of Massachusetts (Ret.)

Hon. Shannon Frison Superior Court, Commonwealth of Massachusetts

Matthew S. Furman, Esq. Todd & Weld LLP, Boston

Heather L. LaVigne, Esq. Board of Bar Overseers, Commonwealth of Massachusetts

Susan Letterman White, JD, MS Massachusetts Law Office Management Assistance Program (LOMAP), Boston

Jack Marshall, Esq. ProEthics, Ltd., Alexandria, VA

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iii Massachusetts Continuing Legal Education, Inc.

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iv About the Faculty

AMY ANTHONY is a housing and bankruptcy attorney at the Volunteer Lawyers Project of the Boston Bar Association (VLP). Prior to joining VLP, she was a staff attorney at the Northeast Justice Center and Merrimack Valley North Shore Legal Services. Ms. Anthony is a graduate of Columbia University and the American University Washington College of Law.

CHRISTA A. ARCOS is in private practice in Stoneham. She specializes in representing lawyers in proceedings before the Massachusetts Board of Bar Overseers and in legal malpractice claims, as well as appellate practice. Between 2001 and 2006, Ms. Arcos prosecuted bar discipline complaints as an assistant bar counsel with the Office of Bar Counsel at the Massachusetts Board of Bar Overseers. She has been a member of the Massachusetts Bar Association’s standing committee on ethics since 2007. Before starting her own firm, she was a partner with the Boston office of Morrison Mahoney LLP in the firm’s professional liability department (non-medical), specializing in civil and commercial litigation. She has also served as an assistant clerk at the Massa- chusetts Appeals Court. From 1993 to 2001, she was in private practice specializing in business and commercial litigation. Ms. Arcos authored a book entitled Effective Deposition Strategies and Techniques (MCLE, Inc. 2005) and coauthored the ethical commentaries for Massachusetts Expert Witnesses (MCLE, Inc. 2018) and Massachusetts Divorce Law Practice Manual (MCLE, Inc. 2016). For many years, Ms. Arcos has been a faculty member and author for the American Bar Association, MCLE, and the Massachusetts Bar Association on a range of topics including taking depositions, ethics, practicing with professionalism, equitable relief in civil litigation, and summary judgment. She was a Massachusetts Superior Court law clerk from 1991 to 1993 and is a cum laude graduate of Suffolk University Law School, where she was an author and editor for the Suffolk University Law Review. She is also fluent in Spanish.

JAMES M. BARON is a solo attorney in Waltham. He is a member of the bar in Massachusetts, New Hampshire, and Florida, as well as the U.S. District Courts in Massachusetts and New Hampshire. Mr. Baron handles a wide variety of education-related legal matters, ranging from special education to discipline to disputes involving college and university students. He has presented on special education issues for MCLE, Massachusetts Advocates for Children, the Federa- tion for Children with Special Needs, and the Asperger’s Association of New England. He has also presented on the topic of “Running Your Own Special Education Law Practice” at the 2014 and 2015 annual conferences of the Council of Parent Attorneys and Advocates (COPAA). At the 2017 COPAA conference, he presented on “Using Technology to Handle Student Records and Gain the Edge, from Intake through Hearing.” Mr. Baron has served as a guardian ad li- tem/education advocate for the Massachusetts Juvenile Court. He also serves on the board of directors of the Greater Waltham ARC and the Waltham Community Foundation. He has been selected as a Super Lawyers “Rising Star” in the area of school law from 2011–2017, and has been running his own law practice since passing the bar exam. He is a cofounder, board member, and immediate past-president of Starting Out Solo, a group whose mission is to provide support, education, mentoring, and networking to lawyers who started their own law practice as a first

v legal career step out of law school. Mr. Baron earned his bachelor of arts degree from Brandeis University, his master’s degree in education from Emmanuel College, where he also earned a Massachusetts teaching certification, and his law degree from Suffolk University Law School.

LUCAS M. BLACKADAR is the director of legal services for the Arts and Business Council of Greater Boston. As director, he manages the Arts and Business Council’s legal referral programs, Volunteer Lawyers for the Arts of Massachusetts, and the Patent Pro Bono Program of New Eng- land. In addition to his position at the Arts and Business Council, Mr. Blackadar maintains a private law practice representing start-ups, small businesses, and creatives in trademark, copyright, and business law matters. Prior to launching his private practice, Mr. Blackadar was a business litigation associate at Donovan Hatem LLP. He regularly speaks on intellectual property and business law issues, giving presentations for organizations such as AIGA Boston, Boston SCORE, and Artpreneur.org. He is a member of the Boston Bar Association, where he serves on the solo and small firm section steering committee. He is a graduate of Clark University and Northeastern University School of Law.

BARBARA J. BOWE, LICSW, has been on staff at Lawyers Concerned for Lawyers (LCL) in Boston since 1996. She handles client assessments, referrals, and case management, and is LCL’s liaison with Massachusetts’ nine law schools. Ms. Bowe has also been involved in training programs for the following segments of the Bar: judges, MBA, BBA peer support program, bar advocate programs, LCL monitor program, and professional responsibility classes. She is a 1985 graduate of the Boston University School of Social Work. Ms. Bowe has managed both inpatient and outpatient substance abuse treatment programs in Greater Boston, most recently at Westwood Lodge Hospital just prior to coming to LCL. She has worked in both in-house and offsite employee assistance programs, and has maintained a private practice for many years in Brookline.

HON. DENNIS J. CURRAN is a retired associate justice of the Massachusetts Superior Court. He received his law degree from the University of Virginia School of Law. At the University of Pennsylvania, he graduated magna cum laude, earning both his bachelor and master’s degrees in an accelerated four-year program. A native of Boston, Justice Curran graduated from Boston Latin School. He serves as an adjunct professor of law at the Roger Williams University School of Law, where he also serves on the law school’s board of advisors. In 2015, Justice Curran was awarded the Massachusetts Bar Association’s Chief Justice Edward F. Hennessey Award for "having demonstrated extraordinary leadership and dedication to improving the administration of justice and upholding the highest traditions for public service.” The award has been bestowed only seven times in the past twenty-eight years. In 2016, Justice Curran received the President’s Award for Judicial Excellence, granted by the Massachusetts Academy of Trial Attorneys, for “his deep commitment and belief in the civil justice system, his many contributions to society, and his continued dedication to the law.” In 2017 he received the Judiciary Award, bestowed by the Sons of Italy Commission for Social Justice, and the William Whiting Judicial Courage Award, so honored by the Massachusetts chapter of the American Board of Trial Advocates. Be- fore his judgeship, Justice Curran served as first assistant legal counsel to the governor and as an

vi assistant district attorney in a career criminal prosecution unit in Suffolk County. He was a Bos- ton trial attorney for over twenty years, having achieved an “AV” rating (the highest possible rating for professional excellence and ethical standards) from Martindale-Hubbell. He has achieved board-certification as a civil trial advocate by the National Board of Trial Advocacy, and has also been elected for admission into the American Board of Trial Advocates. The gover- nor first nominated Justice Curran in 2002 as an associate justice to the District Court; he served in the newly-constructed Boston Municipal Court in 2003, and just three years later, the governor nominated him as an associate justice of the Superior Court, where he has served for over a dec- ade. He serves on the board of directors for the Justinian Law Society, the board of advisors for the Roger Williams School of Law, and the board of directors of the Lincoln Forum. Justice Cur- ran has a strong public policy interest in civil case flow management and (alternative) dispute resolution. As a trial judge, he presided over 450 civil and criminal trials.

HON. SHANNON FRISON was appointed to the Massachusetts Superior Court in March of 2013, at age 42. She is the youngest judge on that court. Justice Frison took that seat after serving for more than three years on the Boston Municipal Court, from 2009–2013. She is a jurist, a major of Marines, and a mentor to new trial lawyers. Before her appointment, Justice Frison practiced locally and abroad as owner of Frison Law Firm, PC. Her practice focused on blue collar criminal law and military justice. She tried several high profile murder, rape, and conspiracy cases in the Boston area and in the military courts of North Carolina, Pensacola, Florida, and Okinawa, Japan. Her final case before taking the bench was a tragic and complex quadruple murder that occurred in Dorchester and was tried in Suffolk County Superior Court. In that matter, she defended the man accused of all four murders of four young men in a basement music studio. The trial lasted over a month and included more than sixty witnesses. Justice Frison spent nearly seven years as a litigation associate at the former white collar defense firm Dwyer & Col- lora LLP in Boston prior to opening her own firm. She earned her bachelor’s degree in government from Harvard & Radcliffe Colleges in 1992 and her juris doctor from Georgetown Univer- sity Law Center in 1995. Justice Frison was admitted to the Massachusetts Bar in 1995 and began her career as an assistant district attorney with the Norfolk County District Attorney’s Of- fice, where she worked out of the Quincy District Court. Justice Frison holds the rank of major in the U.S. Marine Corps and is a Marine Corps judge advocate. She completed Officer Candidates School and accepted her commission in the U.S. Marine Corps in 1994; she completed the Basic School and Naval Justice School in 1997. From 1997–2000, she was the prosecutor aboard Ma- rine Corps Air Station New River in Jacksonville, North Carolina. Since the beginning of the hostilities in Afghanistan and Iraq, Justice Frison has been mobilized to active duty twice in support of the global war on terror in both legal and nonlegal capacities. In addition to serving the country and practicing law, she has served as a Guberman Teaching Fellow at Brandeis Univer- sity, teaching introduction to law and appearing as a guest lecturer at Brandeis on military justice and military tribunals.

vii MATTHEW S. FURMAN is an attorney at Todd & Weld LLP in Boston, where he concentrates his practice on complex commercial litigation including business disputes, employment litigation, and real estate matters. He regularly appears in court on behalf of clients, including trials and arguing substantive motions. He has also advocated for clients in appellate courts, including the 1st U.S. Circuit Court of Appeals and the Massachusetts Supreme Judicial Court, as well as in arbitrations and mediation. In representing businesses and their owners, Mr. Furman has experience in pursuing and defending claims related to contracts, business torts, corporate governance issues, non-competition agreements, wrongful termination, and wage and hour matters. His experience with real estate litigation includes handling disputes over easements and commercial leases, as well as defending and challenging variances and permits.

HEATHER L. LAVIGNE is assistant bar counsel at the Massachusetts Board of Bar Overseers. Prior to this, she was a hearing officer at the Massachusetts Department of Public Utilities; before that, she was an attorney at the Boston-based law firm of Choate Hall & Stewart LLP. Ms. LaVigne is a graduate of Clark University and Boston College Law School.

SUSAN LETTERMAN WHITE is a practice advisor at Lawyers Concerned for Law- yers/LOMAP in Boston, where she works with lawyers and law firms to improve leadership and management, organizational and team performance, and marketing and business development. She has designed and facilitated training and coaching programs for law firms, consulting firms, governmental agencies, universities, and chemical and pharmaceutical companies. She uses her expertise to identify strategy problems and solutions and in facilitating group discussions among organizational stakeholders. Ms. White is also an adjunct professor at Northeastern Universi- ty, where she teaches leadership, strategic change, and communication skills. She is a frequent author and speaker on strategy, change, and leadership, and she serves as chair of the Massachu- setts Bar Association law practice management section. Ms. White is a graduate of Brandeis University, American University, and Loyola Law School.

JACK MARSHALL is the president and founder of ProEthics, Ltd. in Alexandria, Virginia, and the primary writer and editor of the ethics commentary blog Ethics Alarms (www.ethicsalarms.com). He has taken the experience gleaned from a diverse career in law, public policy, academia, and theater and applied it to the field of legal, business, and organizational ethics. Over eighteen years he has developed more than 180 programs and seminars for bar associations, law firms, Fortune 500 companies, non-profit organizations, and government agencies. He has worked to develop rules of professional responsibility for attorneys in emerging African democracies through the International Bar Association and for the new judiciary of the Republic of Mongolia through USAID. With Pulitzer Prize-winning historian Edward Larson, he compiled and edited The Essential Words and Writing of Clarence Darrow (Random House, 2007). Mr. Marshall also served on the adjunct faculty of the Washington College of Law at the American University in Washington, DC. He is a graduate of Harvard College and Georgetown University Law Center, and is licensed to practice in Massachu- setts and the District of Columbia. Like many who are interested in the nature of good, evil, justice, and chaos, Mr. Marshall is a lifetime fan of the Boston Red Sox.

viii Table of Contents

Section 1: Professionalism and Being a Massachusetts Lawyer ...... 1 Hon. Dennis J. Curran  Quote of the Day...... 3  Words of Wisdom ...... 5  Discovery Abuse...... 9  Regrettable Things Lawyers Say ...... 23  Regrettable Pleadings ...... 51  Ever-Shifting Pleadings ...... 69  Lawyer Overreaching ...... 81  Chutzpah ...... 87  Unusual Cases...... 101  Interesting Cases ...... 119  And Remember ...... 139  So, Which Type of Lawyer Do You Want to Be? ...... 141  An Introduction to the Massachusetts Court System...... 143  Abraham Lincoln: A Model for Today’s Trial Lawyers ...... 145  Annual Report on the State of the Massachusetts Court System FY2017 ...... 153  Annual State of the Judiciary Address, October 26, 2017 Chief Justice Ralph D. Gants’ Remarks ...... 213 Chief Justice Paula M. Carey’s Remarks ...... 227 Court Administrator Jonathan Williams’ Remarks ...... 233  Chapter 254 of the Acts of 2014 ...... 239  Standing Order 1-15 ...... 241

Section 2: Massachusetts Rules of Professional Conduct and How They Differ from the Model Rules ...... 247 Jack Marshall  Synopsis of Hypotheticals, Issues and Rules...... 247 Hypothetical One: “Goony Universe” ...... 247 Hypothetical Two: “Hedda Cabbage” ...... 249 Hypothetical Three: “I Love Luca” ...... 251 Hypothetical Four: “Dinner of Doom” ...... 253 Hypothetical Five: “Techno-Hell” ...... 255

ix Section 3: Managing the Attorney-Client Relationship, Including Social Media Do’s and Don’ts ...... 257 Christa A. Arcos

Materials provided by Christa A. Arcos, Esq. of Stoneham—  New Ethics Rule: Mass. R. Prof. C. 1.15A, Effective September 1, 2018 ...... 261  Checklist When Terminating/Withdrawing from Representation and File Transfer/Retention (Arcos, July 2018) ...... 269  Checklist for Conflicts (Arcos, July 2018) ...... 271  Multiple Party Representation and the New Conflict Rules: What You Need to Know...... 273  Sample Potential Conflict Disclosure Letter—Civil Litigation (Arcos, 2017) ...... 274  Sample Potential Conflict Disclosure Letter—Joint Estate Plan (Arcos, 2017) ...... 278  Revisions to the Rules of Professional Conduct: What You Need to Know ...... 281  CJE Opinion No. 2018-03 (Disclosure of Former Facebook Friendship) ...... 282  CJE Opinion No. 2016-01 (Facebook: Using Social Networking Site) ...... 284  CJE Opinion No. 2016-08 (LinkedIn: Using Social Networking Site) ...... 289  CJE Opinion No. 2016-09 (Twitter: Using Social Networking Site) ...... 291  ABA Opinions 483 (October 17, 2018), 481 (April 17, 2018), and 480 (March 6, 2018)...... 296  What’s in a Statement? Truth and Accuracy in Preparing and Executing Sworn Documents ...... 297  Wearing Two Hats: Dual Practices and Ancillary Businesses ...... 300  Smaland Beach Association, Inc. v. Genova, 461 Mass. 214 (2012) ...... 305  Getting Ahead in the Cloud ...... 318  MBA Ethics Opinion 12-03 (Using Cloud Storage—Google Docs) ...... 323  Revised Massachusetts Rules of Professional Conduct ...... 327 Materials provided by James S. Bolan, Esq., Brecher, Wyner, Simons, Fox & Bolan LLP, Newton—  Prospective Client ...... 335  Documentation...... 336  Telephone Procedures ...... 337  Confidentiality ...... 338  Conflict Checks ...... 339 Conflicts Check Form ...... 340 Boston Bar Association Ethics Committee Opinion 2004-1 ...... 341  Outline of Massachusetts Legal Malpractice Law ...... 347  24 Top Ten Rules of the Road ...... 348  I Never “Met A Data” I Didn’t Like...... 351

x  Discipline and Malpractice Standards ... When Rules Catch Up with Reality (“World Series” Edition) ...... 358  Ethics, Risk and Malpractice Avoidance (Excerpts) ...... 360 Current Events Issues in Ethics and Professional Responsibility ...... 360 The Bounds of Zealous Advocacy ...... 369 Managing a Law Practice ...... 372 Creating the Attorney/Client Relationship and Communicating with Clients ...... 375 Conflict Management ...... 379 Maintaining Files ...... 379 Financial Management ...... 380 Billing and Collecting ...... 382  Loss Prevention/Malpractice Prevention/Bar Complaint (Excerpts) ...... 388 Audit Procedures ...... 388 Substantive Issues and Approaches ...... 391 Lawyer Support Systems/Ancillary Matters ...... 391 Taking Steps to Prevent Malpractice and BBO Claims ...... 393  You Mail, I Mail, We All Send Email ...... 397  “In-House” and “Out-House” ...... 400  Fee Agreements and Related Administrative Documents ...... 403 Client’s Fee Agreement (Litigation) ...... 404 Records Management Policy ...... 408 Sample Agreements and Documents from LOMAP: Client’s Fee Agreement (Litigation) ...... 409 Client’s Fee Agreement (Transactional Engagement) ...... 413 Client’s Fee Agreement (Engagement with Possible Litigation to Follow) ...... 417 Contingent Fee Agreement, Form A ...... 421 Contingent Fee Agreement, Form B ...... 423 Flat Fee Agreement ...... 425 Non-Engagement Letter ...... 427 Disengagement Letter (Closing Letter) ...... 428 Fee Agreement—Document Retention/Destruction at the End of the Representation Under 1.15[f] and 1.16[d] and [e] ...... 429 Fee Agreement—Special Provision for Internet/Cloud Services ...... 430

Materials provided by Scott D. Burke, Esq., Morrison Mahoney LLP, Boston—  MBA Ethics Opinion 2014-5 (“Friending” an Unrepresented Adversary) ...... 431  Sample Engagement Letter/Agreement ...... 433  Sample Non-Engagement Letter ...... 440

xi Section 4: Why Every Lawyer Should Be Interested in Cultural Competency ...... 443 Hon. Shannon Frison Articles by Ronald E. Wheeler Jr., Fineman & Pappas Law Libraries, Boston University School of Law—  Helping Courts Address Implicit Bias ...... 445  Michael Brown, Eric Garner, and Law Librarianship ...... 469  Soft Skills ...... 479  We All Do It: Unconscious Behavior, Bias, and Diversity ...... 485

Section 5: Overview of the Bar Discipline System & Common Ethical Issues ...... 493 Heather L. LaVigne  Overview of the Bar Discipline System & Common Ethical Issues ...... 495  Presentation Slides ...... 503

Section 6: General and Affinity Bar Associations and Mentoring Programs ...... 511 James M. Baron, Lucas M. Blackadar, & Matthew S. Furman  Welcome Letter (November 14, 2011) from Chief Justice Roderick L. Ireland ...... 511  Mentoring Programs for Newly Admitted Lawyers in Massachusetts ...... 512  Starting Out Solo History, Benefits, and Membership Information ...... 515

Section 7: The Importance and Rewards of Pro Bono Work ...... 517 Amy Anthony  Presentation Outline ...... 517  Volunteer Lawyers Project of the Boston Bar Association ...... 519

Section 8: Law Office Management ...... 521 Susan Letterman White  Presentation Slides ...... 523

Section 9: Lawyers Concerned for Lawyers ...... 535 Barbara J. Bowe  How LCL Can Help with Your Concerns About a Fellow Attorney ...... 537  Lawyers Concerned for Lawyers Contact Information ...... 538

xii Program Agenda Monday, November 5, 2018

8:00 a.m. – 9:00 a.m. Check in (breakfast provided by MCLE)

9:00 a.m. – 9:15 a.m. Introductory Remarks and Practicing with Professionalism Video Montage

9:15 a.m. – 9:45 a.m. Professionalism and Being a Massachusetts Lawyer, with an Overview of the Massachusetts Court System Hon. Dennis J. Curran (Ret.), Wellesley Hills

9:45 a.m. – 10:45 a.m. Massachusetts Rules of Professional Conduct and How They Differ from the Model Rules, Part I Jack Marshall, Esq., ProEthics, Ltd., Alexandria, VA

10:45 a.m. – 11:00 a.m. Networking and Refreshment Break

11:00 a.m. – 11:45 a.m. Massachusetts Rules of Professional Conduct, Part II

11:45 a.m. – 12:20 p.m. Managing the Attorney-Client Relationship, Including Social Media Do’s and Don’ts Christa A. Arcos, Esq., Arcos Law Office, Stoneham

12:20 p.m. – 12:30 p.m. Box Lunch Pick Up (provided by MCLE)

12:30 p.m. – 1:30 p.m. Lunch Conversation: The Importance of Cultural Compe- tency, Diversity and Inclusion in the Legal Profession Hon. Shannon Frison, Superior Court, Commonwealth of Massachusetts

1:30 p.m. – 1:40 p.m. In the Court’s Own Words (SJC video)

1:40 p.m. – 2:15 p.m. Overview of the Bar Discipline System and Common Ethical Issues Heather L. LaVigne, Esq., Board of Bar Overseers, Commonwealth of Massachusetts

2:15 p.m. – 2:35 p.m. General and Affinity Bar Associations and Mentoring Programs James M. Baron, Esq., Law Office of James M. Baron, Waltham Lucas M. Blackadar, Esq., Arts & Business Council of Greater Boston, Brighton Matthew S. Furman, Esq., Todd & Weld LLP, Boston

xiii 2:35 p.m. – 2:50 p.m. Networking and Refreshment Break

2:50 p.m. – 3:10 p.m. The Importance and Rewards of Pro Bono Work Amy Anthony, Esq., Volunteer Lawyers Project of the Boston Bar Association (VLP), Boston

3:10 p.m. – 3:55 pm. Law Office Management Susan Letterman White, JD, MS, Massachusetts Law Office Management Assistance Program (LOMAP), Boston

3:55 p.m. – 4:15 p.m. Lawyers Concerned for Lawyers Barbara J. Bowe, LICSW, Lawyers Concerned for Lawyers, Inc., Boston

4:15 p.m. – 4:30 p.m. Closing Remarks, SJC Evaluations and Certificate of Completion Distribution

xiv SECTION 1 Professionalism and Being a Massachusetts Lawyer

A Quote of the Day ...... 3

B Words of Wisdom ...... 5

C Discovery Abuse ...... 9

D Regrettable Things Lawyers Say ...... 23

E Regrettable Pleadings...... 51

F Ever-Shifting Pleadings ...... 69

G Lawyer Overreaching ...... 81

H Chutzpah ...... 87

I Unusual Cases ...... 101

J Interesting Cases ...... 119

K And Remember ...... 139

L So, Which Type of Lawyer Do You Want to Be? ...... 141

M An Introduction to the Massachusetts Court System ...... 143

N Abraham Lincoln: A Model for Today’s Trial Lawyers ...... 145

Additional Materials

Annual Report on the State of the Massachusetts Court System FY2017 ...... 153

Annual State of the Judiciary Address, October 26, 2017

Chief Justice Ralph D. Gants’ Remarks ...... 213

Chief Justice Paula M. Carey’s Remarks ...... 227

Court Administrator Jonathan Williams’ Remarks ...... 233

Chapter 254 of the Acts of 2014 ...... 239

Standing Order 1-15 ...... 241

2 Section 1A

Quote of the Day

“It is difficult to live a life of integrity, to be civil, decorous, professional and courteous with so many forces pulling in other directions. But by discussing these issues in the law schools and in the Bar, with the strong hand of the courts setting the moral tone, and by making constant efforts to remind ourselves and each other that every lawyer still is an officer of the court who has been given the privilege—not the right—to practice this noble profession, we may yet stem the tide. Let us hope so. As Chief justice Burger said a quarter of a century ago:

Without civility no private discussion, no public debate, no legislative process, no political campaign, no trial of any case, can serve its purpose or achieve its objective. When men shout and shriek or call names, we witness the end of rational thought process if not the beginning of blows and combat.”

—Honorable Paul L. Friedman, United States District Court for the District of Columbia. March 13, 1998 before the American Bar Association.

4 Section 1B

Words of Wisdom

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”

– Abraham Lincoln (1850) Notes for a Law Lecture, in 2 ROY P. BASLER, COLLECTED WORKS OF ABRAHAM LINCOLN, 81 (Rutgers Univ. Press 1953).

5 6

8 Section 1C

Discovery Abuse

“TO BE [CIVIL], OR NOT TO BE, THAT IS THE QUESTION.”

(Paraphrasing Hamlet, Act III, Scene I)

9 10 11 12 13 14 15 16 17 18 19 20 21

22 Section 1D

Regrettable Things Lawyers Say

Quote of the Day

“Good judgment comes from experience. And experience comes from bad judgment.”

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Regrettable Pleadings

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Ever-Shifting Pleadings

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Lawyer Overreaching

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Chutzpah

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Interesting Cases

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And Remember . . .

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So, Which Type of Lawyer Do You Want to Be?

(Check one)

  Texas Deposition Lawyer Atticus Finch

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An Introduction to the Massachusetts Court System

How many statutory judgeship positions currently exist under the Massachusetts General Laws?

• Supreme Judicial Court – 7 • Land Court – 7 • Appeals Court – 25 • Juvenile Court – 41 • Superior Court – 82 • Probate and Family Court – 51 • Housing Court – 10 • Boston Municipal Court – 30 • District Court – 158

Committees subject SUPREME to SJC oversight JUDICIAL COURT

APPEALS COURT

TRIAL COURT

Office of Office of Jury Commissioner Commissioner of Probate

Boston District Housing Juvenile Land Probate and Superior Municipal Court Court Court Court Family Court Court Court Dep’t Dep’t Dep’t Dep’t Dep’t Dep’t Dep’t

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Abraham Lincoln: A Model for Today’s Trial Lawyers

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152 ANNUAL REPORT ON THE STATE OF THE MASSACHUSETTS COURT SYSTEM

FY2017

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Courthouses and Year of Construction

Front cover: Southern Berkshire District Marlborough District Court & Berkshire County Court; Central Housing Framingham District Court Juvenile Court – Great Court; Middlesex Probate 1952 Suffolk County Highrise: Barrington Session & Family Court Suffolk Superior Court & 1900 1969 Land Court Dudley District Court; Essex (Lawrence) Superior 1937 Worcester County Juvenile Court – Dudley Session; & Court Central Housing Court 1859 1972

Back cover: Taunton Trial Court 2011 Brighton Division Fitchburg District Court; East Brookfield District Court Boston Municipal Court Ayer District Court Worcester Juvenile 1995 1925 1970 Court‐Fitchburg Session 1970

Annual Report on the State of the Massachusetts Court System 154 155

Annual Report on the State of the Massachusetts Court System 156

The Massachusetts Court System As of June 30, 2017

Supreme Judicial Court Chief Justice Ralph D. Gants

Appeals Court Chief Justice Scott L. Kafker

Trial Court Chief Justice Paula M. Carey Court Administrator Jonathan Williams (appointed May 2017) Court Administrator Harry Spence (retired April 2017)

Boston Municipal Court Chief Justice Roberto Ronquillo Jr.

District Court Chief Justice Paul C. Dawley

Housing Court Chief Justice Timothy F. Sullivan

Juvenile Court Chief Justice Amy L. Nechtem

Land Court Chief Justice Judith C. Cutler

Probate & Family Court Chief Justice Angela M. Ordoñez

Superior Court Chief Justice Judith Fabricant

Massachusetts Probation Service Edward J. Dolan, Commissioner

Office of Jury Commissioner Pamela J. Wood, Commissioner

Annual Report on the State of the Massachusetts Court System 157

The Massachusetts Court System

Supreme Judicial Court 1 Chief Justice 6 Associate Justices

Massachusetts Appeals Court 1 Chief Justice 24 Associate Justices

Executive Office of the Trial Court Massachusetts Office of Jury Probation Commissioner Chief Justice Court Service Administrator

Boston Municipal Housing Court Land Court Superior Court Court Department Department Department Department 1 Chief Justice 1 Chief Justice 1 Chief Justice 1 Chief Justice 9 Associate Justices 6 Associate Justices 81 Associate Justices 29 Associate Justices 5 Divisions 14 Counties 8 Divisions

District Court Juvenile Court Probate & Family Department Department Court Department 1 Chief Justice 1 Chief Justice 1 Chief Justice 157 Associate Justices 40 Associate Justices 50 Associate Justices 62 Divisions 11 Divisions 14 Divisions

The number of justices for all courts is the total authorized by law.

Annual Report on the State of the Massachusetts Court System 158

Annual Report on the State of the Massachusetts Court System FY2017

Contents

Supreme Judicial Court 1

Appeals Court 7

Trial Court 10 Broaden Access to Justice 11 Enhance Public Safety 13 Provide a Safe, Sustainable Infrastructure 15 Improve Operational Effectiveness 16 Engage Local Communities 17 Trial Court by the Numbers 18 Departmental Highlights 20 Excellence Awards 29 Judges & Officials 30

Statistical Appendix Fiscal Data A‐3 Arraignments by Offense Type A‐4 Case Filings by Type A‐6 Case Filings by Department A‐8 Case Flow Metrics A‐10 Clearance Rate A‐12 Time to Disposition A‐13 Pending Cases Beyond Time Standards A‐14 Trial Date Certainty A‐15 Massachusetts Probation Service Caseload A‐16

Annual Report on the State of the Massachusetts Court System 159 Supreme Judicial Court

Massachusetts Supreme Judicial Court Justices and Officials As of June 30, 2017

Chief Justice Ralph D. Gants

Justices

Barbara A. Lenk David A. Lowy Geraldine S. Hines Kimberly S. Budd Frank M. Gaziano Elspeth B. Cypher

Acting Executive Director Carol R. Lev

Clerk for the Commonwealth Francis V. Kenneally

Clerk for the Commonwealth Maura S. Doyle

Annual Report on the State of the Massachusetts Court System 160 Supreme Judicial Court

Supreme Judicial Court mass.gov/courts

he Supreme Judicial Court (SJC), originally called the Superior Court of Judicature, was established in 1692 and is the oldest appellate Tcourt in continuous existence in the Western Hemisphere. It serves as the leader of the Massachusetts court system, holding final appellate authority regarding the decisions of all lower courts and exercising general superintendence over the administration of the lower courts.

The full Court hears appeals on a broad range of Supreme Judicial Court: criminal and civil cases from September through May. Single justice sessions are held each week Fiscal Year 2017 Highlights throughout the year for certain motions, bail reviews, bar discipline proceedings, petitions for Annual State of the Judiciary Address to admission to the bar, and a variety of other the Legal Community statutory proceedings. The full bench renders approximately 200 written decisions each year; Chief Justice Ralph D. Gants delivered his third the single justices decide a total of approximately annual address to the legal community at an event 600 cases annually. sponsored by the Massachusetts Bar Association in October 2016. Chief Justice Gants spoke about The SJC also has oversight responsibility in efforts to address issues of race in the criminal varying degrees, according to statutes, with justice system, noting that data from the several affiliated agencies of the judicial branch, Massachusetts Sentencing Commission shows including the Board of Bar Examiners, Board of that the racial and ethnic disparity in the rates of Bar Overseers, Clientsʹ Security Board, imprisonment in Massachusetts is significantly Correctional Legal Services, Inc., Massachusetts greater than it is nationwide. The Chief Justice Legal Assistance Corp., and Massachusetts also declared that courts are working to address Mental Health Legal Advisorsʹ Committee. implicit bias in the court system through training of judges and staff, jury instructions, and other measures. He reported that the courts are Supreme Judicial Court for Suffolk examining whether the judiciary unwittingly County (Single Justice Session) punishes poverty by the imposition of fines, fees, and restitution that a defendant has no ability to The SJC for Suffolk County is known as the single pay. The Chief Justice expressed optimism about justice session of the Supreme Judicial Court. An the collaborative effort of the Governor, Speaker, associate justice essentially acts as a trial judge, as Senate President and Chief Justice in working was the function of the first justices, or as an with the Council of State Governments on administrator of the Court’s supervisory power criminal justice reform and eagerly awaits the under G.L. c. 211, § 3. The county court, as it is final recommendations. often referred to, has original, concurrent, interlocutory, and appellate jurisdiction on a Court Management Advisory Board statewide basis. In addition to the single justice caseload, the justice sits on bar docket matters. Following the recommendation of the Visiting Committee on Management in the Courts (the Monan Committee), the Massachusetts Legis‐ lature in 2003 created the Court Management Advisory Board (CMAB) to advise and assist the

Annual Report on the State of the Massachusetts Court System 1 161 Supreme Judicial Court

Justices of the Supreme Judicial Court, the Chief included: “The Answer Book,” a guide for Justice of the Trial Court, and the Court children and youth in foster care and “A Guide for Administrator on matters pertaining to judicial Relative Caregivers.” administration and management and all matters of judicial reform. Court Management Advisory Board

In FY17, Attorney Lisa Goodheart succeeded Members (As of June 30, 2017) Glenn Mangurian as Chair of the Board. Under Lisa C. Goodheart, Chair her leadership, the CMAB met regularly to Partner, Sugarman, Rogers, Barshak & Cohen, PC support the Trial Court in its pursuit of continuous quality improvement, strategic Randy Chapman, Esq. innovation, and service excellence. In particular, the CMAB undertook a review of the personnel Chapman and Chapman, PC policies and practices that have occurred since the Harshbarger Task Force issued its final report and Kate Donovan recommendations on the hiring and promotion Manpower Business Solutions procedures in the Judicial Branch in 2011. In addition, in FY17, the CMAB chartered an outside Hon. Gail Garinger (ret.) committee to review the Trial Courtʹs use of data Office of the Attorney General in the management of the system. Scott Harshbarger, Esq. Casner & Edwards, LLP Court Improvement Program The Supreme Judicial Court’s Court Improvement Richard Johnston, ex officio Program (CIP) manages a federal grant awarded Office of the Attorney General to promote improved outcomes for children in state custody. In FY17, funds continued to support Allen B. Kachalia, MD, JD work on an interdisciplinary guidebook on Brigham and Womenʹs Hospital confidentiality and information sharing for professionals working with children, youth, and Liam Lowney, ex officio families. In addition, funds continued to support Massachusetts Office for Victim Assistance a research grant to Boston University’s School of Social Work: “Designing Data Drive Directions for Hon. James McHugh (ret.) School Success of Children in Care,” a Retired from the Massachusetts Appeals Court multiagency project involving the Department of Elementary and Secondary Education, the Donald Oppenheimer Department of Children and Families and the John F. Kennedy School of Government courts. The Child Welfare Data Analyst, funded by CIP under the direction of the Department of Denise Squillante, Esq. Research and Planning and the CIP Steering Denise Squillante PC Committee, continued to expand data reporting to include permanency based timeliness measures Kenneth Turner and other specialized performance measures to Massachusetts Port Authority promote improved outcomes for children in state custody. The purchase of business intelligence tools provide accessibility to data reports to support improved case management.

CIP funds supported extensive trainings on child welfare issues and advocacy through workshops and conferences for social workers, lawyers, and judges. CIP also funded the publication of guides to assist stakeholders, children, and families in navigating the child welfare system. These

Annual Report on the State of the Massachusetts Court System 2 162 Supreme Judicial Court

Pro Bono Legal Services Among other activities during the past year, the Commission, and its members: The SJC’s Standing Committee on Pro Bono Legal Services works to promote volunteer legal work to • Received a Public Welfare Foundation/ help people of limited means who are in need of Justice For All grant to develop a strategic legal representation, in accordance with Rule 6.1 of action plan for improving access to justice the Massachusetts Rules of Professional Conduct. throughout the Commonwealth; In recognition of outstanding commitment to providing volunteer legal services for the poor and • Successfully advocated for statewide disadvantaged, the Standing Committee expansion of the Housing Court in the presented the 15th annual Adams Pro Bono Massachusetts budget for FY18; Publico Awards in October 2016 to three Massachusetts attorneys: Ann Milner, Roger J. • Spearheaded the allocation of an Reid, and Bancroft ʺBatsʺ Wheeler; and a special additional $8.3 million in funding for civil student award to Alexandra Tucker, 2016 legal aid for victims of crime over the next Graduate of Boston University School of Law. two years from Federal Victims of Crime During the awards ceremony, the Committee also Act funds; acknowledged those participating in the Courtʹs Pro Bono Honor Roll, a recognition program for • Expanded the Civil Appeals Pro Bono those who have met the program criteria by Program to the entire Commonwealth; providing significant pro bono legal services. The Pro Bono Committee also visited Suffolk • Continued to develop the Access to Justice University Law School and Boston University Fellows program, through which retired School of Law in FY17 as part of its ongoing lawyers and judges have provided over commitment to pay regular visits to law schools in thousands of hours of pro bono service to Massachusetts to learn about and promote the pro nonprofit entities; bono activities of the law students. Finally, the Committee members spoke about pro bono legal • Endorsed the report of the Commission’s services at the Boston Bar Association’s series of Access to Attorneys Committee, which Practicing with Professionalism courses. These are studied how the private bar could meet just some of the Committeeʹs activities during the the legal needs of litigants who cannot past year. afford an attorney, including the use of fee‐shifting statutes, limited assistance Access to Justice Commission representation, and further education and training. The Access to Justice Commissionʹs goal is to achieve equal justice for all persons in the Massachusetts Guide to Evidence

Commonwealth by providing leadership and vision to, and coordination with, the many The Massachusetts Guide to Evidence organizes organizations and interested persons involved in and states the law of evidence applied in the courts providing and improving access to justice for those of the Commonwealth. Each year, the Executive unable to afford counsel. The Commission Committee of the Supreme Judicial Court includes representatives from the courts, the Advisory Committee on Massachusetts Evidence private bar, the legal services bar, the client Law monitors judicial decisions and other relevant community, law schools, business entities, and statutory and rule changes concerning the law of social service providers, and is organized around evidence and prepares a new edition of the Guide committees that reflect an expansive access to that incorporates significant new developments. justice agenda, including Delivery of Legal The ninth annual edition was released in January Services, Access to Lawyers, Administrative 2017. The Committee also prepares an online Justice, Non‐Lawyer Roles, Revenue Enhance‐ supplement, which provides short summaries of ment, Self‐Represented Litigants, and Social important opinions of the Supreme Judicial Court Services. and the Appeals Court relating to the law of evidence.

Annual Report on the State of the Massachusetts Court System 3 163 Supreme Judicial Court

SJC Standing Advisory Committee on In the second round, 55 judges in the District, Professionalism Housing, Juvenile, Superior, and Probate and Family Court in Norfolk County and Plymouth County were evaluated, yielding 3,272 attorney The SJC Standing Advisory Committee on evaluations, 1,079 employee evaluations, and 691 Professionalism is charged with overseeing the juror evaluations. implementation of SJC Rule 3:16 on Practicing with Professionalism, which requires a man‐ In the third round, 48 judges in the District, datory course on professionalism for lawyers Housing, Juvenile, Superior, and Probate and admitted to the Massachusetts bar on or after the Family Court in Berkshire County, Hampden effective date of September 1, 2013. County, Hampshire County, and Franklin County were evaluated, yielding 2,430 attorney The Committeeʹs duties and responsibilities evaluations, 1,301 employee evaluations and 503 include: designating approved course providers; juror evaluations. making recommendations to the Court regarding the fees to be charged for the course and any Overall, in FY17, each of the 143 judges evaluated circumstances under which the fees may be received, on average, 58 attorney evaluations, 22 waived; evaluating the course providers; reporting employee evaluations and 22 juror evaluations. to the Court on at least an annual basis on the implementation of the course and an assessment of whether the program is accomplishing its Community Outreach intended goals and outcomes; and overseeing the The Supreme Judicial Court uses the John Adams administration of all aspects of SJC Rule 3:16. Courthouse to provide free educational opportunities for students, educators, and the Four organizations, the Mass. Bar Association, the public consistent with John Adamsʹ passion for Boston Bar Association, Mass. Continuing Legal justice, community, and learning. In FY17, these Education, and the Greater Lynn Bar Association opportunities included: hosting a traveling exhibit were selected by the Standing Committee as on the Law, Justice and the Holocaust in approved providers of the courses. During FY17, collaboration with the United States Holocaust the approved providers conducted 21 courses at Memorial Museum in Washington, DC; student sites in Boston and across the state. group visits to the courthouse to attend oral arguments, meet with a justice, or watch a Judicial Evaluation dramatic performance of an historical event; teacher training sessions; and the Courtʹs annual The judicial evaluation program has facilitated the celebrations of Student Government Day and Law collection and processing of judicial evaluations Day. from attorneys, court employees, and jurors since its introduction in 2001. The program provides The Supreme Judicial Court also entered its narrative comments and aggregated statistical twelfth year of successful partnership with Theatre assessments to judges concerning their Espresso to perform educational dramas for school professional, on‐bench performance in an effort to children at the John Adams Courthouse. The enhance the performance of individual judges and Judiciary website continues to provide user‐ the judiciary as a whole. In FY15, the program friendly access and updated information for initiated a revised evaluation questionnaire and litigants, lawyers, educators, and the general commenced a pilot program to test the new public. Webcasts of the Courtʹs oral arguments version. The last round of evaluation in the pilot continue to be available on the website through period occurred at the end of FY17. collaboration with Suffolk University Law School. In FY17, the Supreme Judicial Court also held a Three rounds of evaluation were conducted special sitting outside of Boston, hearing oral during this fiscal year. In the first round, 40 judges arguments at the Fenton Judicial Center in in the District, Housing, Juvenile, Superior, and Lawrence, Massachusetts. Probate and Family Court in Essex County were evaluated, yielding 2,533 attorney evaluations, 714 employee evaluations and 210 juror evaluations.

Annual Report on the State of the Massachusetts Court System 4 164 Supreme Judicial Court

Judicial Youth Corps of the judicial branch. The program has two components: educational sessions in May and Since 1991, the Supreme Judicial Court has June, and summer internships in court offices in conducted the Judicial Youth Corps (JYC), a legal July and August. The Public Information Office education and internship program for high school administers the program, which is funded by students. With the volunteer assistance of judges, foundations and grants. In FY17, the program lawyers, court employees, bar associations, and included 22 Boston students, 10 Worcester other dedicated supporters, the 14‐week program students, and five Springfield students in this rich teaches students about the rule of law and the role educational experience.

Supreme Judicial Court Statistics FY2017

Caseload FY2016 FY2017 Direct Entries 107 108 Direct Appellate Review ‐ Applications Allowed 53 48 Direct Appellate Review ‐ Applications Considered 126 122 Further Appellate Review ‐ Applications Allowed 39 19 Further Appellate Review ‐ Applications Considered 847 795

Transferred by SJC on its Motion from Review of Entire Appeals Court caseload 30 42

Gross Entries 229 217 Dismissals 19 12 Net Entries 210 205

Dispositions FY2016 FY2017

Full Opinions 152 170 Rescripts 39 45 Total Opinions 191 215 Total Appeals Decided 196 227

Annual Report on the State of the Massachusetts Court System 5 165

Massachusetts Appeals Court Justices and Officials As of June 30, 2017

Chief Justice Scott L. Kafker

Justices

Peter W. Agnes Jr. Edward McDonough Amy Lyn Blake William J. Meade Kenneth V. Desmond Jr. James R. Milkey Joseph M. Ditkoff Eric Neyman Mark V. Green Peter J. Rubin Sydney Hanlon Peter Sacks Vickie L. Henry Sookyoung Shin C. Jeffrey Kinder Mary T. Sullivan James Lemire Joseph A. Trainor Diana Maldonado Ariane D. Vuono Gregory I. Massing Gabrielle R. Wolohojian

Court Administrator Gilbert P. Lima Jr.

Clerk Joseph F. Stanton

Annual Report on the State of the Massachusetts Court System 6 166 Massachusetts Appeals Court mass.gov/courts

he Appeals Court was established in 1972 to serve as the Commonwealth’s intermediate appellate court. It is a court of general Tjurisdiction that hears criminal, civil, and administrative matters. All appeals from the Trial Court (with the exception of first‐degree murder cases) are thus initially entered in the Appeals Court. Similarly, the court receives all appeals from the Appellate Tax Board, the Industrial Accident Review Board, and the Employee Relations Board.

Although the Appeals Court is responsible for 2017, all cases fully briefed by February 1st had deciding all such appeals, every year a small been argued or had been submitted to panels for number are taken up by the Supreme Judicial decision without argument. Court for direct appellate review. During FY17, the Supreme Judicial Court transferred 93 cases of Massachusetts Appeals Court: 1,714 appeals filed. The remaining cases must be decided or otherwise resolved (e.g., by settlement Fiscal Year 2017 Highlights or dismissal) at the Appeals Court. After a case is decided by the Appeals Court, the Appellate Caseload parties may request further review by the The Appeals Court caseload for FY17 declined Supreme Judicial Court, but such relief is granted 1.5% from FY15 as 1,714 new appeals were in very few cases. The Appeals Court is thus the entered. Civil cases slightly predominated over court of last resort for the overwhelming majority criminal cases entries at 50.5% of all new entries. of Massachusetts litigants seeking appellate relief. The court decided 1,443 cases, which was 106 By statute, the Appeals Court has a chief justice more cases than FY16 and 339 more cases than the 1 and 24 associate justices. The justices of the court total of net entries. sit in panels of three, with the composition of judicial panels changing each month. Technology Enhancement In addition to its panel jurisdiction, the Appeals The electronic filing pilot program initiated in Court also runs a continuous single justice session, FY16 proved to be highly successful and was with a separate docket. The single justice may expanded in FY17. Attorneys and self‐represented review interlocutory orders and orders for parties in civil cases are now able to pay the docket injunctive relief issued by certain Trial Court fee and enter civil appeals through e‐filing. As the departments, as well as requests for review of appeal progresses, both counsel in both civil and summary process appeal bonds, certain attorneyʹs now criminal cases can e‐file motions, briefs, and fee awards, motions for stays of civil proceedings record appendix volumes in digital form only, or criminal sentences pending appeal, and with no paper original or duplicate required, thus motions to review impoundment orders. During saving parties the expense of filing multiple paper FY17, 559 cases were entered on the single justice copies of briefs and appendices. This expansion of docket. electronic filing to criminal cases has benefited the Offices of the Attorney General, District The Appeals Court again met the appellate court Attorneys, and the Committee for Public Counsel guideline for the scheduling of cases and by June

1 Net entries is the total number of cases entered after dismissals, subtracted. This is the number of cases that the court actually has to consolidations and transfers to the Supreme Judicial Court are decide.

Annual Report on the State of the Massachusetts Court System 7 167 Massachusetts Appeals Court

Services by eliminating their copying and postage Electronic Transmission Pilots with costs for filings in the Appeals Court. In the Trial Court approximately one year, the number of briefs and The Appeals Court and Trial Court launched two appendices filed in a digital format has pilot programs that utilize existing technology to progressed from zero to 65% of the briefs and make transmissions between the courts more appendices filed. At the end of FY17, the court efficient. First, the Appeals Court and the began accepting single justice petitions through Springfield division of the District Court launched the Tyler e‐filing portal and in FY18 plans to a pilot program for the electronic transmission of expand to impounded cases as well. all transcript volumes and appeals in criminal cases, eliminating the need for paper and ship‐ Internal Initiatives ping. Second, the Appeals Court and several courts from the Superior, Probate and Family, and Pro Bono Assistance Program for District Court departments are in the second year Self-Represented Litigants of a pilot program for the transmission of A new appellate pro bono pilot program electronic notices between the courts, eliminating completed its first year. Begun at the end of FY16, paper and postage costs. the program is a collaboration between the Supreme Judicial Courtʹs Access to Justice Commission, the Appeals Court, the Volunteer Community Outreach Lawyers Project, other legal service entities, and The court continued to sit outside the John Adams multiple law firms. Volunteer pro bono attorneys courthouse in FY17. Panels traveled to law schools meet weekly with qualified self‐represented, low‐ throughout the state and visited a local court‐ income individuals in Appeals Court space to house. At each location, the justices heard a full provide legal consultation concerning appellate oral argument list and reserved time after the issues and referrals for possible representation in completion of oral argument to respond to civil appeals. student questions.

Annual Report on the State of the Massachusetts Court System 8 168

Massachusetts Appeals Court

Appeals Court Statistics FY2017

Sources/Types of Appeals Civil Criminal Total

Superior Court 434 468 902 BMC/District Court 79 351 430 Probate & Family Court 137 0 137 Juvenile Court 68 26 94 Land Court 61 0 61 Housing Court 46 1 47 Appeals Court Single Justice 73 10 Industrial Accident Review Board 23 0 23 Appellate Tax Board 60 6 Employment Relations Board 4 0 4 SJC Transfer 00 0 Total Fiscal Year 2017 865 849 1,714 Total Fiscal Year 2016 939 801 1,740

Dispositions Total

Total Panel Entries 1,714 Transferred to Supreme Judicial Court 93 Dismissed/settled/withdrawn/consolidat 517 Net Annual Entries 1,104

Civil Criminal Total

Total Decisions 709 734 1,443

Decision of lower court affirmed 538 594 1,132 Decision of lower court reversed 84 102 196 Other result reached 77 38 115 Published Opinions 109 83 192 Summary Dispositions 600 651 1,251

Annual Report on the State of the Massachusetts Court System 9 169 Massachusetts Trial Court mass.gov/courts

he Massachusetts Trial Court continued its active implementation of the goals outlined in Strategic Plan 2.0, which serve as the Trial TCourt’s blueprint to modernize the court system. At each step, the Trial Court aimed to establish a culture of continuous improvement, to address issues of race, gender, and unconscious bias, to improve the user experience, and to strengthen public trust and confidence. The court’s use of next generation technologies to digitize case filings, improve workplace efficiencies, and better serve the public was ongoing in FY17.

Modernization of court facilities also continued in the clerk’s counter. Electronic Applications for FY17 with the completion of major multi‐year Criminal Complaint (EACC) expanded to 41 court projects, including Franklin County’s new Justice divisions that received more than 175 electronic Center, which opened in February; the renovated complaints daily along with the case‐related Essex County Probate and Family Court, which materials. By the end of 2017, more than 30,000 re‐opened in March, as well as significant EACC cases were entered into MassCourts, the renovation work on courthouses in Springfield Trial Court’s web‐based case management plat‐ and Marlborough. Construction of a new court form. More than 90 local police departments had complex, the Lowell Justice Center, began in FY17. incorporated EACC into their incident reporting systems. The Trial Court’s use of civil e‐filing The Legislature approved a FY17 appropriation of expanded to 33 District Court and Boston $639.4 million, which enabled the Trial Court to Municipal Court locations, one Housing Court expand videoconferencing to all court locations, location, and eight Probate and Family Courts. add five specialty court sessions in underserved areas of the state battling the opioid crisis, and Over 11,000 attorneys registered to use the complete much‐needed court improvement Attorney Portal, which provides access to projects. personalized “my cases” and “my calendar” views of case data stored in the MassCourts The Trial Court implemented a new intranet system, and to certain electronic case documents. platform, the Courtyard, for judges and employees to access important information on Throughout FY17, MassCourts processed bet‐ policies and practices from any electronic device. ween 900,000 and 1.1 million transactions a day. The Courtyard replaced a system in use since The system continued to expand functionality to 2001. support the core case management application. Efforts included expansion of document manage‐ Nearly 14,000 videoconferencing events occurred ment and scanning for all departments in all across the Trial Court in FY17. Court departments locations. More than 1,200 scanners are now in utilized videoconferences for a variety of place in courthouses statewide, capturing more activities, including criminal arraignments and than 200,000 new electronic documents per indictments, bail petitions, civil motor vehicle month. infractions, and restraining orders. As part of its commitment to training and Courts accelerated the expansion of electronic professional development, the Trial Court’s filing for criminal and civil matters, streamlining internet‐based e‐Learning Center enabled more filing processes and reducing paper documents at than 90 percent of judges and employees to

Annual Report on the State of the Massachusetts Court System 10 170

Massachusetts Trial Court complete five modules of Domestic Violence electronic payment of probation fees, and Training and enroll in more than 260 separate live development of electronic transmission of orders education programs. of transport and restraining and harassment orders. The development of courtroom equipment A new Court Administrator joined the Trial Court standards along with an in‐depth review of job in May 2017 and joined the Trial Court Chief descriptions are key elements to facilitate the Justice and the Chief Justices and Deputy Court court’s transition to more digitized operations. Administrators of the Boston Municipal, District, Housing, Juvenile, Land, Probate and Family, and Revised court interpreter standards and Superior Court Departments, the Probation Com‐ procedures will be promulgated based on a missioner, the Jury Commissioner, and the detailed review by the Chapter 221 committee. Directors of the Office of Court Management in Continued implementation of For The Record overseeing statewide court operations. The digital recording system will expand capability to professional commitment and dedication of the access audio files and more quickly deliver state’s judges, clerks, probation, and other court transcripts. Efforts to develop consistent, easy‐to‐ staff ensured the Trial Court’s ability to manage use forms will focus on those areas most accessed more than 900,000 cases filed in FY17. by self‐represented litigants.

This report outlines the State of the Court System, The Trial Court also will advance efforts to with highlights of FY17 accomplishments as well expand staff training in the areas of technology as recommendations and plans for FY18, in and customer service to meet the needs of diverse accordance with G.L. c.211B §9A, by the following court users. priorities: In FY18 the Trial Court will examine and begin  Broaden Access to Justice implementation of recommendations outlined in  Enhance Public Safety reports from the Court Management Advisory  Provide a Safe, Sustainable Board focused on talent development and manag‐ Infrastructure ing with data.  Improve Operational Effectiveness  Engage Local Communities In addition, the courts will work closely with partners in the legislative and executive branches Recommendations & Plans for FY2018 to develop legislation that addresses the recom‐ mendations issued in 2017 by the Council of State Strategic Plan 2.0 Governments focused on reducing recidivism. Across the six “domains” or focus areas of the strategic plan, the Trial Court monitors progress Fiscal Year 2017 Highlights monthly and conducts quarterly Strategic Leadership Team meetings. Building upon the Broaden Access to Justice progress made in FY17, initiatives underway in Access to Justice FY18 include the continuation of a court‐wide The percentage of self‐represented litigants effort to examine issues of race, gender, and continued to increase in FY17, particularly in the unconscious bias in the court system through the Probate and Family Court, Housing Court and work of committees comprised of judges, clerks, Small Claims sessions of the Boston Municipal probation, and security staff. Strategies to expand and District Courts. In an effort to simplify and the communications and management capacity of standardize services and resources most used by local courts on the issues of race, gender, and unrepresented court users, the Trial Court unconscious bias will build on the experience of appointed a Senior Manager for Access to Justice three pilot court leadership teams in 2017. and established a Forms Management Team to review and improve accessibility of forms and The Trial Court will continue to expand the use of court processes across the system. technology to improve service delivery and operational effectiveness in FY18. These efforts Race, Gender & Unconscious Bias include expanded electronic filing for criminal Trial Court leaders expanded work on a compre‐ and civil cases, real‐time case docketing, hensive effort to address issues of bias related to

Annual Report on the State of the Massachusetts Court System 11 171

Massachusetts Trial Court race and gender. Four committees were formed to Technology address these issues within the perspectives of In conjunction with the electronic filing program, judges, clerks, probation, and security staff. The File & Serve, court staff in various departments Trial Court Race & Implicit Bias Advisory were trained on Guide & File, an electronic Committee (TRIBAC) oversees the initiative. In interview program primarily designed to assist early 2017, leadership teams of three local courts – self‐represented or pro se litigants in completing First Justice, Clerk‐Magistrate, Chief Probation selected court forms. The online guided interview Officer, and Chief Court Officer – began includes a series of questions and responses are participation in a pilot to develop the then used to populate or generate a form suitable management and leadership skills to promote the for filing in court. These guided interviews will effective communication needed to address these eventually connect to e‐filing, enabling litigants to issues within the context of court operations. The complete the forms and filing process entirely pilot concluded in October 2017 and will inform online. Court staff helped develop a guided further expansion of this work. interview for a summary process complaint in the Boston Municipal, District, and Housing Court Limited Assistance Representation Departments. A small claims interview also was Massachusetts continued its national leadership piloted in the six Court Service Centers for filing in promoting use of limited assistance in those court divisions. representation (LAR) in FY17. LAR permits an attorney and a client to agree on “unbundled” Access to Justice Initiatives Overseen by the services, whereby the attorney provides assis‐ Office of Court Management: tance with discrete services rather than providing full representation for the entire case. An attorney Access and Fairness Survey may provide LAR on a compensated or In May 2017, the Trial Court’s Department of uncompensated (pro bono) basis, thereby Research and Planning and court volunteers increasing the number of attorneys available to conducted the Access and Fairness survey at 25 clients, opening new clienteles to attorneys, and courthouses. Last conducted in 2009, the survey enhancing access to justice. was developed by the National Center of State Courts to measure court users’ level of satisfaction In FY17 the Trial Court partnered with the with court accessibility, as well as treatment in Massachusetts Bar Association and local bar terms of fairness, equality, and respect. Results associations to promote the use of LAR and from the 2009 Access and Fairness survey serve as provide LAR training to attorneys across the a baseline for analysis of the latest survey results Commonwealth. The courts continued to develop to be published in FY18. a uniform LAR rule for use in all Trial Court departments, as well as standardized LAR forms. Judicial Response System The Trial Court also maintains a public list of This response system provides judicial inter‐ LAR‐qualified attorneys to facilitate access for vention in emergency situations when the courts otherwise unrepresented court users. are closed. Judges participate through an on‐call process coordinated with public safety officials in Justice for All Project eight regions. In FY17, judges handled 5,456 Massachusetts was one of seven states across the emergency evening or weekend calls, for an country to receive a Justice for All grant in average of 105 calls per week. December 2016. The grant from the Public Welfare Foundation will help facilitate 100% access to effective assistance for individuals with essential civil legal needs. To that end, with the support of the Supreme Judicial Court and the Access to Justice Commission, the Trial Court participated in a strategic action planning process with the organized Bar, legal aid programs, law schools, and social service agencies focused on building out the resources available to meet the essential civil legal needs of the public.

Annual Report on the State of the Massachusetts Court System 12 172 Massachusetts Trial Court

Interpreter Services public on existing dispute resolution programs, Approximately 89,500 court events received and how to educate judges and clerks on interpretation services in 109 languages. providing access to appropriate dispute resolution services. The committee provides free Top Language Requests conciliation training programs and in FY17 coordinated training in three counties of the Spanish 59,756 Probate and Family Court. Portuguese 11,165 Haitian 3,160 Volunteer Lawyer Initiatives Cape Verdean 3,041 Trial Court Departments collaborated with local Vietnamese 1,734 bar associations to provide pro bono legal Arabic 1,724 services. The Volunteer Lawyer Project and Mandarin 1,741 Lawyer for the Day programs offered legal American Sign Language 1,338 support to self‐represented civil litigants in the Russian 1,129 Boston Municipal, District, Housing, and Probate Cantonese 777 and Family Court departments. In collaboration Khmer 625 with the Massachusetts Legal Resource Finder (massLRF.org), the Trial Court posted court‐ Law Libraries connected resources into one comprehensive The Trial Court’s 15 law libraries welcomed 36,942 listing on mass.gov/courts and in local court‐ on‐site patrons, recorded 5.6 million website houses. pages viewed, responded to 17,162 legal reference questions, and answered 5,343 questions via chat Enhance Public Safety and text. Council of State Governments Court Service Centers Justice Center Report Some 55,593 people visited one of the Trial Court’s In FY17 state and court leaders partnered with the six Court Service Centers (CCCs) in FY17 for Council of State Governments (CSG) Justice procedural or legal information, help with forms, Center to release “Justice Reinvestment in access to interpreter services, assistance with legal Massachusetts: Policy Framework,” a report research and contact information for community outlining policy options to ensure taxpayer resources, legal assistance programs, and social dollars are invested to have the greatest impact on service agencies. Members of the CSC Committee reducing recidivism. The report, along with began planning the launch of an online CSC to recommended legislation, outlines ways in which expand services to court users with support from Massachusetts can enhance public safety, avoid Massachusetts Appleseed and Suffolk University nearly $10 million in projected corrections costs by Law School. In addition, the Boston CSC at the 2023, and accelerate further reduction of its Brooke Courthouse launched a controlled incarcerated population, currently the second Guardianship Study on the service of process with lowest in the nation. Harvard Law School’s Access to Justice Lab and the Volunteer Lawyers Project. Expanded Specialty Courts The Trial Court continued to expand the number Alternative Dispute Resolution of specialty courts to reach its goal of 50 sessions The Standing Committee on Dispute Resolution by 2017. At the end of FY17, 45 specialty court oversees and implements Alternative Dispute sessions operated across the state as follows: Resolution (ADR) to expand the understanding and access to court‐connected dispute resolution • 26 Adult Drug Courts services. In FY17, the Standing Committee • 3 Juvenile Drug Courts gathered and compiled baseline data on the use of • 7 Mental Health Courts ADR services and identified the dispute • 5 Veterans Treatment Courts resolution options available to litigants in the • 2 Homeless Courts seven Trial Court Departments. The committee • 1 Family Drug Court also researched and examined the use of judicial • 1 Family Resolutions Specialty Court settlement conferences, how best to educate the

Annual Report on the State of the Massachusetts Court System 13 173 Massachusetts Trial Court

New specialty court sessions in FY17: Cambridge Homeless Court (August 2016), Hingham Drug Court (August 2016), Pittsfield Drug Court (September 2016), Taunton Drug Court (November 2016), and Springfield Drug Court (January 2017).

Drug Courts Strategic Plan 2.0 Themes The Boston Municipal Court, District Court, and  Continuous Improvement Juvenile Court Departments conducted drug  Race & Unconscious Bias court sessions in collaboration with the  User Experience Department of Public Health, Bureau of Substance  Public Trust & Confidence Abuse Services, and Department of Mental Health. The Franklin County Probate and Family Court created a Family Drug Court to provide Trial Court Goals services to parents or caregivers needing Preserve and enhance the quality of judicial treatment who agree to participate in the program. Research shows that these specialized decision‐making. sessions reduce crime and substance abuse, Deliver justice with effectiveness, efficiency, enhance public safety, and strengthen families. and consistency in court operations and Key elements of this structured approach include intensive probation supervision and therapeutic services. programming, frequent testing, and careful Ensure fair access to the court system. monitoring by the supervising judge. Respect the dignity of the judicial process In FY17, four drug courts successfully completed and all participants and provide a safe a certification process. Trial Court judges and environment. staff worked with the Center of Excellence for Specialty Courts at UMass Medical to develop the Support a high‐performance organization certification process. The process includes a with a well‐trained, engaged, collaborative, document review, self‐assessment by the drug and diverse workforce. court team, and a two‐day site visit by a Certification Team consisting of a retired judge, a Increase the transparency and accountability drug court probation officer, and a specialty court of court operations. clinician. The team determines if the drug court follows the ten Key Components for Drug Courts Strengthen relations with the Legislative and adopted by the National Association of Drug Executive branches. Court Professionals and the federal Bureau of Justice Assistance. Explore and expand collaborative and innovative approaches to delivering justice. Mental Health Sessions The Boston Municipal Court’s Mental Health Enhance public trust and confidence in the Diversion Initiative (MHDI) serves criminal judicial branch. defendants (primarily charged with misde‐ meanors and non‐violent felonies) by offering a pre‐trial diversion or post‐conviction program of mental health treatment and strict probation supervision, rather than detention and jail time. The MHDI operates in the Central, Roxbury, and West Roxbury divisions. The District Court conducts mental health sessions in Quincy, Plymouth, and Springfield and a voluntary Recovery Session in the Cambridge District Court.

Annual Report on the State of the Massachusetts Court System 14 174

Massachusetts Trial Court

Veterans Sessions coordination of community service projects and Veterans Treatment Courts operate in the District pro‐social modeling treatment goals at each CCC. Court divisions of Dedham, Framingham/Natick, Western Massachusetts (Holyoke), and Lawrence, Domestic Violence Compliance as well as in the Central Division of the Boston The Trial Court Domestic Violence Education Municipal Court. These treatment courts address Task Force continued to lead initiatives to ensure the special needs of veterans, particularly issues of legal compliance with the Act Relative to post‐traumatic stress disorder and traumatic brain Domestic Violence and to support the Act’s policy injury. goals. In FY17, more than 5,400 judges and employees completed five mandatory, online Homeless Court training modules on topics related to domestic This collaborative program established by the violence, including the impact of domestic West Roxbury Division of the Boston Municipal violence on victims, the impact of exposure to Court, includes participation by the Suffolk domestic violence on children, risk assessment, County District Attorney’s Office, Committee for and information about intimate partner violence. Public Counsel Services, the Pine Street Inn and Shattuck Hospital. Participants who complete a Provide a Safe, Sustainable substance abuse or job‐training program are Infrastructure eligible to have their default warrants removed Capital Construction Projects and their low‐level cases terminated, since open The Trial Court invested $64 million in new default warrants impact a person’s housing and construction, renovation, and repairs in employment opportunities. The District Court courthouses in FY17. The Facilities Management also operates a Homeless Court in Cambridge in and Capital Planning Department engaged in collaboration with the Salvation Army. numerous deferred maintenance projects across

the state to address aging facilities. Working with Community Corrections Centers the state Division of Capital Asset Management Probation’s Office of Community Corrections and Maintenance (DCAMM), the department (OCC) conducted numerous community service completed approximately $1.7 million of study, and enhanced supervision programs in FY17 design, and construction work. The Court Capital through its network of 16 Community Correc‐ Projects Department, which merged with tions Centers (CCC). Some 2,349 probationers Facilities Management in FY17, oversaw participated in CCC programs, including: completion of major renovations in Greenfield cognitive behavioral therapy, career counseling, and Salem and initiated construction for the new educational supports, and comprehensive case 267,000 square‐foot Lowell Justice Center. The management with accountability measures, such $200 million project, which includes green energy as drug and alcohol screening; community‐work technologies to improve efficiency, is estimated to service, and electronic monitoring. More than 76% be substantially complete by late 2019. of CCC participants achieved a negative drug test.

The $65 million Franklin County Justice Center CCCs piloted Technology Assisted Care with the opened in February and the renovated Essex support of the New England Addiction County Probate and Family Court opened in Technology Transfer Center, implemented a March 2017. Major renovation of the Haverhill Bureau of Justice Assistance Drug Court District Court was well underway by the close of Enhancement Grant, and continued quality FY17. The expected $9.4 million, 12‐month long improvement through new protocol for treatment project consists of replacement of roof and dosage and transition benchmarks. In addition to windows, new elevator, accessible front entrance enhanced supervision, CCCs provided a forum and mechanical, electrical, and interior finish for Probation’s Fatherhood Program, Intimate upgrades. Partner Abuse Education Program in Pittsfield, and served as Drug Test Satellite Collection Sites. Capital Master Plan The OCC also improved its community work The Trial Court released its Capital Master Plan in service through the procurement of new vans, in‐ FY17, concluding a multi‐year collaborative effort service staff training on trauma‐informed with DCAMM and consultants with expertise in approaches to supervision, and increased

Annual Report on the State of the Massachusetts Court System 15 175

Massachusetts Trial Court courthouse planning, design and operations. The department divisions and in some instances, to plan seeks to remedy the varying levels of cases in other departments. Criminal docketing in deterioration found across the state’s 100+ MassCourts is expected to begin in the Boston courthouses, identify funding needed to achieve Municipal and District Courts in FY18. these improvements, and provide a comprehensive approach for a more sustainable e‐Access & Attorney Portal and efficient court system. This will be The Trial Court continued to enhance its e‐access accomplished through a mix of repairs, reno‐ portal allowing various case searches on the vations, and expansions to existing courthouses, public internet (mass.gov/courts), and on public as well as a number of proposed new regional computers located in courthouses across the state. justice centers. E‐access is now available on mass.gov/courts for some case types in every Trial Court department Improve Operational Effectiveness except the Juvenile Court. The use of the Attorney Electronic Filing Portal continues to grow, with over 11,000 Electronic Applications for Criminal Complaint registered attorneys using the system by the end (EACC) expanded to 41 court divisions that of FY17. received more than 175 electronic complaints daily along with the case‐related materials. By the Digital Recording in Courtrooms end of 2017, more than 30,000 EACC cases were The Trial Court continued to install the digital entered into MassCourts, the Trial Court’s web‐ recording system For The Record throughout the based case management platform. More than 90 state’s 436 courtrooms. FTR downloads record‐ local police departments had incorporated EACC ings of courtroom proceedings across the state to into their incident reporting systems. For civil a central server and will be integrated with cases, the courts expanded the use of e‐filing for MassCourts to track and locate recordings for certain civil case types in the District Court, individual cases. In FY17, the Trial Court installed Boston Municipal Court, Probate and Family 134 FTR systems bringing to 264 the number of Court and Housing Court. In FY18, expansion will courtrooms equipped since 2015. Completion is add other departments and case types. In expected in FY19. addition, Guide and File tools are being used to build guided interviews that would create a filing Professional Development & e‐Learning Center by self‐represented litigants in small claims cases. The Judicial Institute offered and managed more than 260 separate live education programs and MassCourts 175 local education sessions in the system, documenting and awarding learning credit for Select MassCourts Statistics training provided by local managers for their staff. As of the end of FY17, MassCourts contains: The Massachusetts Probation Service, Security 23 million cases Department, and other Trial Court entities offered 51 million case calendar events hundreds more. The Judicial Institute offered 18 million electronic documents additional training for Trial Court judges and in the Document Management System employees, including a significant expansion of its technology training, with more than 50 programs Throughout FY17 the MassCourts system on Word, Excel, PowerPoint and other technology processed between 900,000 and 1.1 million tools. Mandatory online Domestic Violence transactions per day in support of all Trial Court Training was administered through the Trial departments. Focus turned to other supporting Court e‐Learning Center, a new learning areas around the core MassCourts case management system that registers program management application, including expanded participants and provides training materials. document management and scanning for all departments in all locations. The 1,200 scanning Juror Utilization devices enable courts to capture over 200,000 new Juror utilization remains a top priority for the electronic documents per month. Another Trial Court and the Office of Jury Commissioner. ongoing upgrade will provide judges and clerks In FY17 the statewide juror utilization rate was with view‐only access to most cases across 46.2 percent, following a record high 47.2 percent

Annual Report on the State of the Massachusetts Court System 16 176

Massachusetts Trial Court in FY16. The OJC and Trial Court departments and community centers to speak about the work continued to emphasize this metric and provided done in the courts and how the American legal best practices for court use in projecting and system works. Law Day celebrations took place in modifying the number of jurors needed on a given May in 12 courthouses statewide. day for possible impanelments. Jury Outreach and Education Engage Local Communities The Office of Jury Commissioner (OJC) continued its outreach to urban, underserved, and adult National Adoption Day audiences to assure the most diverse and National Adoption Day is one of several projects representative jury pools. In FY17, the OJC supported by the Court Improvement Program, a community outreach program with schools and federally‐funded program administered by the community groups, court personnel and others Supreme Judicial Court. In November 2016, over reached 5,464 people, who attended 160 OJC 100 children in state foster care were formally Public Outreach presentations at 80 different adopted across the state as part of the 14th annual locations. National Adoption Day. The event raises awareness of the thousands of Massachusetts Changing Lives Through Literature children in need of adoptive families. Adoption Sixteen probationers celebrated completion of the ceremonies occurred at the George N. Covett Changing Lives Through Literature (CLTL) Courthouse in Brockton, which served as the program at the Lawrence District Court in May statewide media site for the event, the Edward W. 2017. The CLTL Program is a seven‐week program Brooke Courthouse in Boston and the Worcester created more than 20 years ago by a probation Trial Court. officer, judge, and literature professor to engage probationers in an activity that would reduce Juvenile‐Focused Partnerships recidivism and demonstrate to probationers that All divisions of the Juvenile Court partnered with there are better opportunities available to them local Probation and Office of Community through education. CLTL explores diverse works Corrections staff, community leaders and non‐ of literature and poetry, and is one of the longest profits to plan and implement a wide variety of running programs of the Massachusetts Probation community‐based programs, including Operation Service (MPS). There are roughly 20 CLTL Night Light, Shakespeare in the Court, Mothers Programs offered statewide in the court system Helping Mothers, Truancy Watch, Stop Watch, and facilitated by Probation Officers. Bridging the Gap, and the Juvenile Resource Center.

Partnerships with Bar Associations, Schools, Non‐Profits, and Law Enforcement Judges, clerks, probation staff, and many others across all court departments partnered with their local communities on programs that address local needs. School‐based efforts shared information about the court’s role in the community through opportunities such as mock trials and internships. Outreach included ongoing work with advocacy and membership groups that regularly interact with the courts. Courts also worked with local law enforcement to provide guidance on a range of issues, such as new statutes and rules amendments. Probation staff continued work with local police, non‐profits, and other entities to design programs that combat violence and reduce crime. In March, over 20 judges participated in the American Bar Association’s first‐ever National Judicial Outreach Week. Judges visited schools

Annual Report on the State of the Massachusetts Court System 17 177 Massachusetts Trial Court by the Numbers Data is for Fiscal Year 2017 or as of June 30, 2017, unless otherwise noted.

People Judicial positions authorized by statute 379 Total Judges and Staff 6,333 Percent Women 57.5% Percent Diverse Staff 23.5% Judicial Institute (JI) Training Programs 269

Access to Justice Judicial Emergency Response (calls after hours) 5,575 Interpreted Events 89,500 Number of Languages 109 Law Libraries 15 Law Libraries: On‐site Patrons 39,903 Six Court Service Centers (intakes to date) 82,811 Judiciary Website Visitors (mass.gov/courts) 4.6M Judiciary Website Page Views 25.1M

Money Matters Operating Appropriation $ 639.4M General Revenue Collected $ 59.4M Probation Fees Collected $ 17.8M

Annual Report on the State of the Massachusetts Court System 18

178 Court Business New Case Filings 917,874 Cases in MassCourts 23M Electronic Documents in MassCourts 18.2M Calendar Events in MassCourts 51M Jury Trial impanelments 3,657 Jurors Appearing 195,413 Juror Utilization Rate 46.2% Probation Supervision Caseload 70,201 Probation Surrender Hearings 43,132 Total GPS Caseload 3,492 Community Correction Centers (CCC) 16 CCC Enrollment 2,158 Specialty Courts 45 Adult and Juvenile Drug Courts 30 Mental Health Courts 7 Veterans Treatment Courts 5 Other 3 Video Events 14,200 Stays in Lockup 215,661

Case Flow Metrics Clearance Rate 103.0% Cases Disposed Within Time Standards 86.7% Pending Caseload 207,062 Trials Held Within Two Date Settings 73.7%

Facilities Total Facilites 125 Facilities with Courtrooms 99 State/County Owned Facilities 80 Leased Facilities 43 Number of Courtrooms 429 Total Facilities ‐ Floor Space in Sq.Ft. 5.6 M

Annual Report on the State of the Massachusetts Court System 19

179 Massachusetts Trial Court

Boston Municipal Court Department

Fiscal Year 2017 Highlights

Section 35 Pilot for Civil Commitments The Boston Municipal Court Department (BMCD) promulgated Standing Order 1- 17 for a Pilot Initiative in the West Roxbury Division, effective May 1, 2017. This order established procedures for police or physicians seeking civil commitments for people in need of hospitalization due to alcohol and/or substance disorders without having to appear in person, resulting in more immediate help for high risk patients. Since May, 62 referrals have been made by law enforcement and physicians for civil commitment under the new procedures. Of those referrals, 66% were for substance use disorder, 23% were for alcohol use disorder and 11% were for both substance use and alcohol use disorder.

Full Criminal Docketing Edward W. Brooke Courthouse, The BMCD now has four divisions using MassCourts with full criminal docketing: Boston Central, Charlestown, East Boston, and West Roxbury. The improved case management system includes more detailed docket entries to accurately reflect Judges: 30 activity on a case, and has significantly reduced manual docketing by court staff. By year-end, the BMCD’s remaining four divisions converted to full criminal Divisions: 8 docketing. FY2017 Case Filings: 80,400 Expansion of Civil e-Filing In June 2017, the BMCD expanded its electronic civil case filing initiative by Jurisdiction: piloting electronic filings for small claims and supplementary process cases in its Civil jurisdiction includes cases in West Roxbury Division. The Brighton Division was the first to receive electronic which the likely recovery does not civil case filings. As a result, clerk's office staff no longer need to manually create exceed $25,000; small claims cases; cases, or accept paper applications, streamlining the filing process. summary process cases; mental health, and alcohol and drug abuse Auto Notify Program commitments; domestic violence The BMCD received a Trial Court Innovation Grant to fund an “Auto-Notify” pilot restraining orders and harassment based in the West Roxbury Division. Court users can opt to receive automated phone prevention orders. Criminal juris- messages reminding them of upcoming court hearings. Besides providing a service diction extends to enumerated felonies to litigants, the goal is to reduce failure to appear rates. This will result in more punishable by a sentence of up to five efficient caseflow management, and better allocate resources and court staff. The years and many other specific felonies pilot is being used for Civil Motor Vehicle Infraction hearings. If the program is with greater potential penalties; successful, it will expand to other case types. misdemeanors, including violations of domestic violence restraining orders; MassCourts “Tip of the Month” and violations of city and town Each month, Local User Experts receive MassCourts tutorials, fostering continued ordinances and by-laws. The Court has learning and improving user accuracy and efficiency. Tip of the Month is based on jurisdiction over evictions and some frequent questions or suggestions received from MassCourts users in the field. These related matters, and provides judicial tips are also catalogued on the Courtyard intranet, so users can refer back to them review of some governmental agency easily. determinations. Increased Use of Alternative Dispute Resolution (ADR) ADR enables the BMCD to resolve cases within time standards, improve caseflow management and provide cost-effective options to the public. ADR also improves awareness and access, personnel training and education, quality of services, and collaboration with outside mediation service providers. Each BMCD division has an appointed ADR coordinator. The BMCD plans to utilize an ADR tracking report within MassCourts in FY18, which will allow the department to easily track and analyze cases being referred to ADR.

Annual Report on the State of the Massachusetts Court System 20 180 Massachusetts Trial Court

District Court Department

Fiscal Year 2017 Highlights

Professional Development The District Court held a series of three regional educational meetings for its judges. Topics included: training on revised standards forms and rules in mental health and domestic violence, updates to the marijuana law, issues related to recusal, and S.J.C. Rule 3:10 Assignment of Counsel. There were presentations on current street drug trends and the impact on substance abuse, as well as a discussion on the Report of the Criminal Justice Task Force and Pretrial Conditions of Release. A series of three Fall River Justice Center regional educational meetings for District Court clerks was also conducted, involving a variety of topics of interest to clerk magistrates. The District Court’s Judges: 158 annual three-day judicial conference in June focused on topics related to evidence. Divisions: 62 Videoconferencing Videoconferencing use and capability has dramatically increased throughout the FY2017 Case Filings: 582,710 District Court, and is in use in nearly all locations. Videoconferencing has been used for various criminal court events, including, among others, pretrial hearings, Jurisdiction: compliance and election hearings, speedy trial requests, and default and warrant Civil jurisdction includes cases in removal hearings. Currently, most Houses of Correction, and all DOC facilities, which the likely recovery does not including those for women in Chicopee and Framingham, are able to exceed $25,000; small claims cases; videoconference with most District Court divisions. The use of videoconferencing summary process cases and related is intended to reduce costs, address safety concerns and delays associated with the matters; mental health, and alcohol and transportation of prisoners and detainees, and improve the efficiency of case drug abuse commitments; domestic management through technology, while safeguarding individual access to justice violence restraining orders and and due process rights. It can also help to alleviate resource shortages in other harassment prevention orders. The situations, such as mental health hearings, or arraignments when no judge is present Court also provides judicial review of in the building. some governmental agency determinations. Criminal jurisdiction The Lee G. Johnson Educational Collaborative extends to felonies punishable by a In FY17 the District Court initiated the Lee G. Johnson Educational Collaborative, sentence to state prison of up to five an outreach program educating students about the judiciary and the justice system. years and many other specific felonies Named for the late Hon. Lee G. Johnson, former First Justice of the Malden District with greater potential penalties; Court, the Collaborative focuses on how community courts protect individual rights misdemeanors, including violations of and provide equal access to justice for all citizens. Courts hosted school groups and domestic violence restraining orders; judges visited high schools. The Collaborative supplements existing outreach efforts and violations of city and town in which District Court judges interacted with hundreds of students across the ordinances and by-laws. Commonwealth, including: Young Women Career Day at Lawrence High School, Methuen Women's History Month at Methuen High School and Civic Education Day at North Andover Middle School.

Valor Act Session In response to increased numbers of cases involving the Valor Act, Plymouth District Court now dedicates twice-monthly sessions to review these cases, in light of the Supreme Judicial Court's opinion in Commonwealth v. Morgan, 476 Mass. 768 (2017). The court reviews the programming and progress for potential defendants, and assesses who is eligible for services under the Valor Act. In instances where defendants may not be eligible for services, the court develops case specific plans and conditions for individuals with prior military service. The session helps the court stay informed and involved with these cases, and often provides the court with the ability to divert individuals from prosecution in compliance with the statute.

Annual Report on the State of the Massachusetts Court System 21 181 Massachusetts Trial Court

Housing Court Department

Fiscal Year 2017 Highlights

Statewide Expansion of the Housing Court In FY17, after many years of effort, the Housing Court will expand to all areas of Massachusetts under the Commonwealth’s final FY18 budget. There was overwhelming support for expansion from the community, bar associations and the Trial Court. Under the expansion, an additional two million people in 84 towns and cities will have access to a housing court. Taunton Trial Court Lawyer for the Day (LDP) and Limited Assistance Representation (LAR) The Housing Court’s five divisions continue to follow Standing Order 1-01, which Judges: 10 governs LDP, in which attorneys provide limited pro-bono legal advice to self- represented litigants in the Housing Court on a first-come, first-served basis. Divisions: 5 Through the years the LDP has helped self-represented litigants, both landlords and tenants, gain access to justice within the Housing Court. FY2017 Case Filings: 40,381 ADR Referrals: 21,503 The list of LAR attorneys continues to grow and is posted on the Trial Court’s website: mass.gov/courts/housingcourt. Jurisdiction: The Housing Court has jurisdiction in Scanning Pilot law and equity over all civil and In January 2017, the Housing Court launched an innovative scanning pilot for all criminal matters involving the use of summary process (eviction) case filings. Court staff scan and view summary process residential property and the activities documents on MassCourts. In FY17, 27,936 summary process cases were filed conducted thereon as well as the use of within the Housing Court, representing roughly 70% of total departmental case any other real property and the filings. Scanning helps improve caseflow management and reduces the number of activities conducted thereon as such continued hearings by allowing staff to remotely access summary process affect the health, safety, or welfare of documents online from any satellite location. The documents will eventually be any resident, owner, or user of viewable to the public online, bringing the Housing Court one step closer to residential property. The Housing digitization of its case files. Court hears summary process (eviction), small claims, and civil Small Claims E-Filing Pilot actions involving personal injury, In May 2017, the Boston Division began a small claims e-filing pilot, allowing property damage, breach of contract, litigants to electronically file their small claims cases. The Housing Court plans to discrimination, and other claims. The expand the pilot to the other divisions. Housing Court also adjudicates code enforcement actions and appeals of Community Partnership & Outreach local zoning board decisions affecting Community outreach continues to be a top priority. The Housing Court was active residential property. in various continuing legal education programs throughout the state. Judges and staff members participated in programs sponsored by Massachusetts Continuing Legal Education such as the Housing Court Judicial Forum and Residential & Commercial Landlord-Tenant Practice in Massachusetts, and attended the Real Estate Bar Association Landlord Tenant Section’s Boston kickoff meeting.

Collaborative Trainings In November 2016, judges, clerk-magistrates and housing specialists joined Land

Court staff for a shared annual conference. The group addressed areas of mutual concerns, including mental health issues, implicit bias, public access to court records, and mortgage and foreclosure issues. In May 2017, the Department’s field coordinator worked in partnership with the ADR coordinator and chief housing specialists to design a full day educational program for all housing specialists. The program addressed biases and challenges, Department of Housing and Community Development shelter eligibility, Tenancy Preservation Program and ADR; Americans with Disability Act and judgments and creditors.

Annual Report on the State of the Massachusetts Court System 22 182 Massachusetts Trial Court

Juvenile Court Department

Fiscal Year 2017 Highlights

Caseflow Management Teams In FY17, Juvenile Court divisions across the Commonwealth created Caseflow Management Teams, which meet regularly to identify and resolve case processing issues. The teams are comprised of representatives from the Clerk Magistrate’s office, judges, Probation, chief court officers, the District Attorney’s office, the Committee for Public Counsel Services, the Department of Children and Families Worcester Trial Court and the private bar. Judges: 41 Suffolk County Diversion Program The Suffolk County Juvenile Court partnered with the Suffolk District Attorney’s Divisions: 11 Office to implement a diversion program in FY17. This aggressive program is available for youth pre-arraignment and post-arraignment on both felony and FY2017 Case Filings: 34,483 misdemeanor charges. Youths are selected to participate in the program after a comprehensive assessment, and are not automatically excluded if they have previous Jurisdiction: court involvement. Diverted youth are referred to one of several community partners The Juvenile Court Department has for services. general jurisdiction over delinquency, children requiring assistance (CRA), Workforce Development Placements care and protection petitions, adult con- The Bristol County Juvenile Court has partnered with the Youth Connection tributing to a delinquency of a minor, program to refer youth for education and training that will lead to employment. adoption, guardianship, termination of Participants take part in paid short-term work placements at public, private and non- parental rights proceedings, and profit work sites. The goal is ultimately to expand these opportunities to parents youthful offender cases. involved with the court on Care and Protection cases.

Digital Communication Pilot The Clerk Magistrate’s office in Norfolk County implemented a successful pilot to improve communication, reduce work load and save money. The office now scans and emails all court appointment orders to Guardian Ad Litems (GALs) and Court Investigators. Office staff also scan rulings on motions and court orders and send them by email to attorneys of record. Additionally, requests for counsel are emailed, saving an enormous amount of time previously spent calling individual attorneys.

Family Drug Court Grant The Franklin/Hampshire Juvenile Court, in partnership with Franklin Probate Court, received a $2.1 million grant to develop a Family Drug Court in Franklin County. The funding will be utilized over a five-year period and will enhance and strengthen the Franklin County Drug Court's existing efforts to improve the negative impact of substance use and co-occurring disorders for families in Western Massachusetts.

Shakespeare in the Courts The Berkshire County Juvenile Court collaborates with the talented professionals at Shakespeare and Company to run two annual sessions of Shakespeare in the Courts. The program is open to juveniles on probation, involved with a CRA or participating in diversion, and consists of daily intensive acting/communication sessions. Each session culminates in a live performance of Shakespeare works before an audience of family, friends, attorneys and local and state dignitaries. This year, the program received media coverage from CBS This Morning, the New York Post and the Boston Herald.

Annual Report on the State of the Massachusetts Court System 23 183 Massachusetts Trial Court

Land Court Department

Fiscal Year 2017 Highlights

Permit Session Report Pursuant to MGL c. 185, §3A, cases filed in the Land Court Permit Session are individually assigned to a judge who handles the case from commencement to conclusion. By statute, the cases allowed entry into the Permit Session only include specified disputes where, “…the underlying project or development involves either 25 or more dwelling units or the construction or alteration of 25,000 square feet or more of gross floor area or both.” The legislation also established three timeframes or tracks for these cases to follow from filing to trial and then to disposition.

Six Permit Session cases were pending at the beginning of FY17. During the fiscal Suffolk County Courthouse, Boston year one new case was filed and six were disposed, resulting in one case remaining pending at the close of the fiscal year. That pending case filing was a transfer from Judges: 7 Middlesex County into the Permit Session. The six cases disposed had a filing to disposition range from six months to 23 months, with an average of 11 months from Case Filings in FY2017: 18,210 filing to final disposition.

Jurisdiction: Digitization The Land Court Department of the The Land Court continues to move toward a more digitized data management and Trial Court has statewide jurisdiction. access environment. A pilot document scanning and paper numbering process for The court has exclusive, original Tax Lien cases began in January 2017. The Court also began exploring ways to jurisdiction over the registration of title implement e-filing. Expansion of document scanning and potential e-filing will to real property and over all matters and allow the Court to reach its goal of making case documents available online in the disputes concerning such title future. subsequent to registration. The court

also exercises exclusive original In the Recorder’s Office Survey Division, a large format scanner now allows jurisdiction over the foreclosure and requested registered land surveyor and final plans, which are archived at the court, redemption of real estate tax liens. The to be digitally scanned and delivered electronically rather than by printing a copy to court shares jurisdiction over other be mailed or picked up at the court. By request, 43% of the total plan copies made property matters. The court has were delivered using this electronic method in FY17. A Request for Information concurrent jurisdiction over specific (RFI) seeking vendor input was issued to replace outdated the Survey Division case performance of contracts relating to management and plan drafting computer system. The procurement of a new system real estate and over petitions for will provide updated platforms for Survey staff to draw and manage registered land partitions of real estate. The court plans, and will eventually allow for greater public access to the Survey Division plan shares jurisdiction over matters arising information. In addition, the Court continues to update and add fillable and saveable out of decisions by local planning forms to its public website. boards and zoning boards of appeal.

Both the Land Court and the Superior Registries of Deeds Pilot Programs Court Department have jurisdiction A group of Land Court judges and staff worked with the Registers of Deeds over the processing of mortgage Association and the Secretary of State’s Office on pilot programs at four Registry foreclosure cases, determining the offices to accept electronic filing of documents for registered land properties. In military status of the mortgagor. April 2017, the pilots began at the Hampden County, Southern Essex (Salem), Additionally, the court has super- Northern Essex (Lawrence), and Norfolk County Registries of Deeds. intendency authority over the

registered land office in each registry of Litigation Alternatives deeds. At the recommendation of the committee of judges and attorneys convened in FY15 to streamline processes resulting in more efficient and effective litigation, Land Court Rule 14 Binding Summary Decision Following Bench Trial: Waiver by Parties of Detailed Findings of Fact and Rulings of Law, was adopted and became effective in January 2017. Several committee members presented this new rule at a session of the Real Estate Bar Association’s Spring Conference.

Annual Report on the State of the Massachusetts Court System 24 184 Massachusetts Trial Court

Probate and Family Court Department

Fiscal Year 2017 Highlights

Franklin County Family Drug Court Franklin County Courthouse, The Franklin Probate and Family Court operated the state’s first family drug court Greenfield in FY17. This specialty court provides a collaborative, non-adversarial approach to address substance use disorder and its effect on the family, especially children. The Judges: 51* Trial Court applied for and received federal funding to provide more intensive case management services that parties need in order to be successful. The requested grant Divisions: 14 will also be used to expand the Franklin Drug Court to families with cases in the Franklin Juvenile Court. With the approval of this $2.1 million grant, the Franklin Case Filings in FY2017: 138,873 Courts will be able to provide services to 175 parents, 240 children, and 180 caregivers. Statistics show that 63% of parents complete treatment in family drug Jurisdiction: courts in other states where this type of intensive case management and recovery The Probate and Family Court of coaches are available. Massachusetts has jurisdiction over family matters such as divorce, Family Centered Case Resolution and Case Management paternity, child support, custody, In FY17 the Probate and Family Court announced the approval of Standing Order parenting plans, adoption, termination 2-17, Family Centered Case Resolution and Case Management in the Probate and of parental rights, and abuse Family Court. The focus is to provide alternatives to litigation and provide litigants prevention. Probate matters include with options at the beginning of their case including: wills, administrations, guardianships, conservatorships and change of name. • An early case settlement process which includes ADR screening, limited The Court also has general equity discovery and participation in a settlement conference early in the life of jurisdiction. the case. * The number of judges includes the • Mandatory referral to ADR screening in cases involving disputes relative current Chief Justice of the Probate and to parental rights and responsibilities. Family Court, the Honorable Angela M. Ordoñez, and the current Chief • Requiring settlement conferences prior to pre-trial conferences for all Justice of the Trial Court, the divorce and divorce modification cases involving disputes over parental Honorable Paula M. Carey, who is an rights and responsibilities. authorized Justice of the Probate and Family Court. The goal of this initiative is to limit the number of cases that go to trial and to promote settlement early in a case, and to give the litigants and the attorney the means and tools to successfully do so.

Quadrennial Review of the Massachusetts Child Support Guidelines In 2016, a task force conducted the quadrennial review of the child support guidelines. Led by Chief Justice Ordoñez, task force members included bar members, a judge, an economist, court staff, and a project manager. The team met from March 2016 to June 2017 with the goal of building upon the work of prior task forces while taking into consideration the current economic climate. The task force added a commentary section to make the guidelines more understandable, which received much positive feedback. In making substantive changes to the guidelines, the team considered information and commentary received through five public forums, survey responses from Probate and Family Court employees, and email commentary submitted during a period of public comment.

Annual Report on the State of the Massachusetts Court System 25 185 Massachusetts Trial Court

Superior Court Department

Fiscal Year 2017 Highlights

E-Filing Pilot Project Under the Trial Court’s Electronic Case Filing Initiative, in FY17 the Superior Court began to develop an e-filing project. This initiative will streamline filing processes and eliminate most paper filings in certain civil cases. Two Superior Court counties, Middlesex and Barnstable, have been selected as pilot sites to implement the system. A committee of personnel from the Administrative Office of the Superior Court and from clerks’ offices in the two pilot counties and other counties has been meeting regularly with the Judicial Information Services Department to discuss strategies to ensure an effective and illustrative pilot. The pilot aims to facilitate a smooth and J. Michael Ruane Judicial Center successful transition to the remaining 12 counties of the Superior Court. Salem

Civil Litigation Options Judges: 82 During FY17, the Court implemented changes in civil litigation resulting from the recommendations of the Working Group on Options for Cost Effective Civil Counties: 14 Litigation. New Superior Court Rules 20 and 30B, providing for individual case management orders and clarifying requirements for expert disclosure, took effect on Case Filings in FY2017: 22,648 January 1, 2017. Also on that date, the Court began to implement a pilot project for early case management conferences in specified case types. Jurisdiction:

The Superior Court has original Caseflow Management and Metrics Progress jurisdiction in civil actions over For many years, the Superior Court has produced statistical case management $25,000, and in matters where reports, which serve as internal case management tools to assist judges and clerks in equitable relief is sought. It also has running sessions effectively and efficiently. original jurisdiction in actions

involving labor disputes where The Court routinely gathers data for the reports through MassCourts. The four injunctive relief is sought, and has metrics the Superior Court concentrates on are: clearance rate, time to disposition, exclusive authority to convene medical cases pending beyond time standards, and trial date certainty. malpractice tribunals.

For FY17, the Superior Court endeavored to reach the goals set for each metric. The The Court has exclusive original Court achieved a throughput of 102%. Civil trial date certainty, which is the jurisdiction in first degree murder cases percentage of cases tried on the first or second scheduled trial date, was 70%, a 10% and original jurisdiction for all other increase over the previous year. crimes. It has jurisdiction over all

felony matters, although it shares The Superior Court continued its work to improve data quality and timeliness under jurisdiction over crimes where other MassCourts. Much time and attention was given to staff training and program Trial Court Departments have con- enhancements. current jurisdiction. Finally, the

Superior Court has appellate juris- Community Outreach diction over certain administrative The Superior Court is dedicated to educating the public regarding its history and proceedings. mission. It has served as host for numerous moot court competitions, advocacy workshops, and mock trial tournaments, involving thousands of students ranging from high school to law school.

Superior Court judges have served as panelists for bar associations and educational institutes. Seventeen Superior Court judges participated in the American Bar

Association’s first annual public outreach initiative called National Judicial

Outreach Week. The judges spoke about this year’s theme, Preserving the Rule of

Law, to students and senior groups across the Commonwealth. Several of the justices, in association with judges from other courts and probation officers, have participated in Changing Lives through Literature programs held at community colleges. . A number of judges performed naturalization ceremonies in Bristol, Suffolk and Middlesex counties.

Annual Report on the State of the Massachusetts Court System 26 186 Massachusetts Trial Court

Office of Jury Commissioner

Fiscal Year 2017 Highlights

Postcard Pilot The OJC conducted a successful postcard notification pilot program in FY16 with an $8,000 Trial Court Innovation Grant. The pilot exceeded all expectations, with The mission of the Office of Jury 65% of recipients responding. As a result, in FY17 the OJC adopted postcard Commissioner is to provide randomly- notification as a regular business practice, and has seen a fairly consistent 66% selected pools of eligible jurors, response rate through the end of FY17. The program will create an estimated cost representative of the community from savings of at least $120,000 per year by eliminating costly summons packages sent which they are drawn, to each of the jury to well over half the people summoned annually. courts of the Commonwealth of Massachusetts, in accordance with the As an additional benefit, the program has dramatically increased the number of needs of those courts and the direction of people using the website as their first, and usually only, method of contact with the the Trial Court. OJC. As of the end of FY16, the percentage of people using the website to respond stood at a record high of 54%. However, after implementation of the postcard Constitution of the Commonwealth of program, and following years of single-digit increases, that percentage jumped 16 Massachusetts points to 70%. Over two-thirds of all summons responses are now handled online. At the same time, costly mailed responses dropped significantly, from 29% to Article XII 13.5%, while telephone responses dropped slightly to 16% (previously 17%). These figures suggest that cost savings over time could be even greater than originally And the legislature shall not make any projected. law, that shall subject any person to a capital or infamous punishment…with- Signature Jury Experience Training Program out trial by jury. As part of its Juror Experience Initiative to improve citizens’ experience of jury service from receipt of the summons through post-court feedback, the OJC worked Article XV with the Judicial Institute and the Chief Experience and Diversity Officer to develop a one-day training program for jury pool officers. The Signature Jury Experience is In all controversies concerning property, modeled on the Trial Court’s Signature Counter Experience program provided to all and in all suits between two or more clerks and some other court personnel. The Trial Court Security Department has persons . . . the parties have a right to a made the Signature Jury Experience program mandatory for all court officers who trial by jury; and this method of staff the Commonwealth’s jury pools. The program has been presented in several procedure shall be held sacred . . . different locations thus far, and will continue in FY18.

Confidential Juror Questionnaire Revision Jurors Summoned in FY17: 691,580 In response to a juror inquiry about the Confidential Juror Questionnaire, which asked people to identify themselves as “Male” or “Female,” the OJC and the Jury Jurors Serving in FY17: 148,742 Management Advisory Committee (JMAC) began examining alternatives. After conferring with the Trial Court Legal Department and the National Center for State Juror Utilization Rate (% of jurors Courts, the JMAC voted to remove the “M__ F__” section of the questionnaire and appearing who are impanelled, replace it with “Sex/Gender Identity ______,” thereby allowing jurors to challenged, or excused): 46.2% identify themselves as they choose while complying with the statute and providing the court and parties with important information during impanelment. It appears that Massachusetts is the first state to offer this option, and the OJC is the first state agency in Massachusetts to do so.

Juror Stress Initiative OJC and JMAC are addressing stress-related issues some jurors may experience resulting from their service. The OJC designed a brochure for courts to distribute to jurors at the conclusion of particularly stressful trials, offering resources and suggestions for identifying and managing stress. The OJC also conferred with the federal court system and the National Center for State Courts about techniques used in other jurisdictions, and is examining potential legislative solutions.

Annual Report on the State of the Massachusetts Court System 27 187 Massachusetts Trial Court

Massachusetts Probation Service

Fiscal Year 2017 Highlights

The Massachusetts Probation Service Workforce Training and Investment (MPS) employs 1,800 professionals During FY17, MPS hired and promoted 314 employees, resulting in nearly 1,800 who work to increase community full-time MPS employees by June 30, 2017. More MPS employees have advanced safety, reduce recidivism, contribute to degrees and experience than ever before. The MPS Training Department provided the fair and equitable administration of employees with an average of 6.9 days of training during the year. Over the past justice, support victims, and survivors, year, MPS staff across the state attended over 500 onsite and online classes, and assist individuals and families in seminars, webinars, conferences, conventions, and local education initiatives achieving long-term positive change. offered by the Training Division and external providers. MPS supervises and provides Responsive Records Unit rehabilitative services to individuals Employees of MPS played a major role in the past year through the Records Unit's under court-ordered supervision. MPS successful processing of 36,694 Annie Dookhan-related cases within a 6-week supports court operations and decision timespan. Dookhan, a former chemist, admitted to falsifying evidence. MPS’s making through case processing and Records and CARI (Criminal Activity Records Information) Units led efforts to managing and delivering electronic correct records in 60 courts. The Records Unit also expertly handled an increase in information. MPS updates and quality phone inquiries following a recent law requiring background checks on drivers who checks information which feeds law work for ride sharing companies. The Unit experienced a 20-25% increase in phone enforcement information systems. inquiries between December and April from drivers who were denied further employment based on the results of their background checks. MPS employs evidenced-based tools and programming to address offenders’ Best Practice Supervision for Juvenile Delinquency Cases needs. MPS plays a critical role in child MPS saw a positive shift in juvenile supervision in FY17. In May 2016, Juvenile protection through Probate and Family Court Probation began transitioning to a fourth generation risk assessment system and Juvenile Courts. MPS provides for youth, the Ohio Youth Assessment Risk Need Responsivity standards. During dispute mediation and disposition that transition, a significant transformation took place: while the old standards support to ensure child safety and best scored about 75% of cases as maximum supervision, 20% as moderate supervision interests. and 5% as low supervision, the new standards scored 24% as maximum, 24% as moderate and 50% as low. The new model enables probation officers to focus on MPS leverages technology to further youth most in need of supervision and support, which research shows to be the most support public safety and rehabilitation effective and cost efficient approach. through a 24/7 electronic monitoring (ELMO) center that monitors and Growth of Victim Services Unit responds to offenders being supervised The Victim Services Unit (VSU), established in FY16, offers court accompaniment, by sophisticated GPS and remote crisis intervention, notification, service referral, and access to CORI/notification of alcohol monitoring devices. release to victims and survivors. The VSU integrates victims and survivors into the work of the MPS and addresses their unique needs in a trauma informed manner. MPS’s Office of Community During FY17, VSU tripled its existing Victim of Crime Act funding and successfully Corrections operates 16 centers, applied for a Drunk Driving Trust Fund grant to support a fifth Victim Services providing intermediate sanctions and Coordinator with particular expertise in services to victims and survivors of supervision for higher-risk offenders on impaired drivers. During FY17, the VSU provided direct services to 1,357 new probation, parole, and correctional pre- victims and survivors of crime across the Commonwealth, with 931 release. Offenders receive intensive victims/survivors receiving ongoing services. supervision and access to rehabilitative services such as substance abuse and Diversity Initiative mental health treatment and job MPS's Statewide Committee on Workforce Diversity and Cultural Competency training in one setting. (WDCC) promotes equity, diversity, inclusion and effectiveness through development of a culturally competent and diverse workforce. Cultural Proficiency MPS’s Community Service Program Champions (CPCs) serve as ambassadors at each court. The goal of the WDCC and deploys an average of 54 crews daily, CPCs is to develop a diverse and culturally proficient workforce that is inclusive to landscape public areas, staff food and dedicated to providing equitable access to justice through customer service kitchens and homeless shelters, and delivery. A growing percentage of court users are people of color, members of the assist in trash, snow and ice removal LGBTQ+ community, and individuals from varied cultures and backgrounds. The along the highways. MPS workforce increasingly reflects the diversity of the court users it serves.

Annual Report on the State of the Massachusetts Court System 28 188 Massachusetts Trial Court 2017 MASSACHUSETTS TRIAL COURTS Boston Municipal Court Emily Santilli EXCELLENCE

District Court Natick / Framingham District Court Record Land Court AWARDS Retention Project Team: Brian Kearney, Ashley Spring Conference Training Team: Fiandaca, Lyndsay Joyal, Ari Brandstein, Barbara Lauren Reznick, Christina Geaney, James Bothwell, Gould‐Cincotta, Laurie Bergeron John Harrington, Leo Bieler, Edgar Packard, John Electronic Application for Criminal Complaint Vitale Teams: Brookline District Court: Edward Savage, Kristin O’Hara, Lillian Robinson, Janice Sennott Probation Concord District Court: Ann Colicchio, Dawn Michael Borden Armstrong, Helen Cappetta Joann Fitzgerald Framingham District Court: Cultural Proficiency Initiative and Cultural John Deluca, Marietta Anastos, Antonio Bianchi, Appreciation Day Team: George Marinofsky Pamerson Ifill, Carmen Gomez, Kevin Martin, Natick District Court: Brian Kearney, Ari Brandstein, Michael Dube, Amy Koenig, Susan Conrad, Garry Ashley Fiandaca, Lyndsay Joyal Porter, Eric Lam, Lorna Spencer, Jodi Fitzsimmons, Orleans District Court: Marion Broidrick, Dolores Claudine Bala, Alice Lord, Sarah Joss, Coria Holland Bowman, Deborah Downs, Judith Moldstad, Susan Sex Offender Risk Need Evidence‐based Tools and Patterson Standards Committee: Felipe Romero, Paul Cervizzi, Jean Curtin, Philip Carofaniello, Kelly Jeager, Probate and Family Court Christopher Bowen, Dawn Marie Varney‐Mahoney, Franklin County Family Drug Court Team: Sarah Joss, Andrew Peck Judge Beth Crawford, John Merrigan, Jodie Nolan, Alexa Flanders, Bette Babinski, Linda Singer, Daniel Office of Court Management / Executive Office Baldner, Jennifer Neumann, Doris Harker, Margaret Andrew Mangan Mercier Matthew Scalifani Donna Hall Superior Court Gerardo Burgos Edward Curley Nantucket District Court Life‐saving Effort: Lucille Pasquale Suzette Brown, David Potter, Brian Kearney Facilities Team: SJC Bench Construction: Juvenile Court Nelson Santos, Rick Croswell, Greg McMahan, Steve Claudia Orcutt Zalewski, Norm Eldredge, Ned Skomurski, Angela Coutinho, Pedro Andrade Courtyard Development and Implementation Team: Kevin Buckley, Margaret Hayden, Christine Lamont, Samantha Schrader

2016 Massachusetts Trial Courts EXCELLENCE AWARDS

Susan McTigue Carlotta Patten & Mark J. Toomey, Videoconferencing Deployment Boston Municipal Court Superior Court Domestic Violence and Training Ellen Moulton & Joanne Spinelli Berkshire County Probation Development & Implementation of District Court Certified Treatment Program E‐Learning Center Development Team Nancy Gargiulo Security Teams in Quincy & Lawrence Probate and Family Court Juvenile Court Probation Risk

Assessment Team Patrick Kelly, Facilities Management Julie Hall, Juvenile Court

Annual Report on the State of the Massachusetts Court System 29

189 Massachusetts Trial Court Judges and Officials Judicial Assignments as of June 30, 2017

Chief Justice of the Trial Court James M. Stanton John A. Canavan Paula M. Carey Mark Hart Summerville Don L. Carpenter** Jonathan R. Tynes Jeanmarie Carroll Court Administrator David Weingarten Martine Carroll Jonathan S. Williams Ellen M. Caulo Clerk Magistrates Paula J. Clifford Boston Municipal Court Margaret F. Albertson Albert S. Conlon Joseph R. Faretra Jacklyn M. Connly Chief Justice Daniel J. Hogan Philip A. Contant Roberto Ronquillo Jr. Sean P. Murphy Mark S. Coven Michael W. Neighbors Daniel C. Crane Deputy Court Administrator Anthony S. Owens Michael C. Creedon Cheryl A. Sibley James B. Roche J. Elizabeth Cremens John E. Whelan David W. Cunis Justices Kevan J. Cunningham Michael C. Bolden District Court Jean M. Curran David J. Breen Andrew M. D'Angelo Catherine K. Byrne Chief Justice David P. Despotopulos James W. Coffey Paul C. Dawley Daniel E. Dilorati Kathleen E. Coffey Patricia A. Dowling Michael J. Coyne Deputy Court Administrators Peter F. Doyle Pamela M. Dashiell Philip J. McCue Deborah A. Dunn Debra A. DelVecchio Ellen S. Shapiro Lisa F. Edmonds David T. Donnelly Sarah Weyland Ellis Mary Ann Driscoll** Justices Thomas H. Estes Kenneth J. Fiandaca Stephen S. Abany Michael L. Fabbri Serge Georges Jr. Michael G. Allard-Madaus Thomas L. Finigan Lisa Grant Mary L. Amrhein Kevin J. Finnerty Lisa Ann Grant Cesar A. Archilla William M. Fitzpatrick Thomas C. Horgan Benjamin C. Barnes Ellen Flatley** Myong J. Joun Thomas S. Barrett Gregory C. Flynn Thomas S. Kaplanes James D. Barretto Maurice R. Flynn Sally A. Kelly Julie J. Bernard Stacey J. Fortes Tracy-Lee Lyons Timothy M. Bibaud David E. Frank Lawrence E. McCormick** William J. Boyle Kevin J. Gaffney John E. McDonald Jr. Cynthia M. Brackett Timothy H. Gailey** Robert J. McKenna Jr.** Heather M. S. Bradley Jennifer L. Ginsburg Paul J. McManus Michael D. Brennan Franco J. GoBourne II David B. Poole Robert A. Brennan W. Michael Goggins Ernest L. Sarason Jr. ** Thomas M. Brennan** Charles W. Groce III Debra Shopteese Holly V. Broadbent William P. Hadley Eleanor C. Sinnott Michael J. Brooks Arthur F. Haley III Richard J. Sinnott Robert B. Calagione Robert G. Harbour John A. Canavan * Acting , **Recall

Annual Report on the State of the Massachusetts Court System 30

190 Massachusetts Trial Court Judges and Officials Judicial Assignments as of June 30, 2017

District Court

Justices, continued Mary A. Orfanello Clerk Magistrates Mary E. Heffernan Stephen S. Ostrach Claudia M. Abreau Julieann Hernon Michele A. Ouimet-Rooke Darren Alston Marianne C. Hinkle Dominic J. Paratore Thomas F. Bartini Daniel J. Hourihan Michael A. Patten Marybeth Brady Neil A. Hourihan John M. Payne Jr. Marion E. Broidrick Ina R. Howard-Hogan Barbara S. Pearson Whitney J. Brown Joseph W. Jennings III Robert J. Pellegrini Kenneth F. Candito* Emogene Johnson Smith Scott D. Peterson Thomas C. Carrigan John M. Julian Gregory L. Phillips Carol K. Casartello Emily A. Karstetter Patricia T. Poehler Kenneth H. Chaffee James T. Kirkman Michael J. Pomarole Margaret Daly Crateau James L. Lamothe Michael J. Ripps** John A. Deluca Gerald A. Lemire Lynn C. Rooney Kathryn Morris Early D. Dunbar Livingston David S. Ross Kevin L. Finnegan David B. Locke William A. Rota Elizabeth M. Fitzgerald Christopher P. Loconto Patrick S. Sabbs John D. Fitzsimmons Paul F. Loconto Bernadette L. Sabra Joella E. Fortier* Matthew J. Machera Dennis P. Sargent John S. Gay Laurie MacLeod Richard D. Savignano William F. George* Andrew L. Mandell** Edward H. Sharkansky Donald Hart Edmund C. Mathers Matthew J. Shea Brian J. Kearney William F. Mazanec III Paul H. Smyth Michelle L. Kelley* Mary F. McCabe John P. Stapleton John F. Kennedy Maura K. McCarthy Jennifer A. Stark Brian K. Lawlor Paul L. McGill James M. Sullivan Joseph A. Ligotti James J. McGovern Mark A. Sullivan William A. Lisano Matthew L. McGrath Mary H. Sullivan Paul F. Malloy Janet J. McGuiggan Allen G. Swan** Patrick J. Malone James H. McGuinness** Steven E. Thomas Daryl G. Manchester Antoinette E. McLean Leoney Michael A. Uhlarik Keith E. McDonough Toby S. Mooney Michael A. Vitali Kathleen M. McKeon Richard A. Mori Paul M. Vrabel Timothy J. Morey Diane E. Moriarty Maureen E. Walsh Manuel A. Moutinho Michael E. Mulcahy Christopher D. Welch William P. Nagle Jr. Robert S. Murphy Robert A. Welsh III Thomas J. Noonan Gilbert J. Nadeau Therese M. Wright John C. O'Neil Mark E. Noonan Paul M. Yee Philip B. O'Toole Kevin J. O'Dea** Robert P. Ziemian** Salvatore Paterna Daniel W. O'Malley

* Acting , **Recall

Annual Report on the State of the Massachusetts Court System 31

191 Massachusetts Trial Court Judges and Officials Judicial Assignments as of June 30, 2017

District Court Juvenile Court

Clerk Magistrates, continued Chief Justice Mark Newman Stephen C. Poitrast Amy L. Nechtem Arose Watson Nielsen Henry H. Shultz Susan V. Oker Christopher N. Speranzo Deputy Court Administrator Mary O'Sullivan Smith Brian M. St.Onge James E. Morton Kathryn Marie Phelan-Brown Doris A. Stanziani Judith J. Phillips Mary Jane Brady Stirgwolt Justices Linda G. Sable Edward B. Teague Charles S. Belsky Jose Sanchez Peter J. Thomas Jay D. Blitzman Carol A. Shaw Arthur H. Tobin Helen A. Brown Bryant John S. Spinale Robert A. Tomasone Deborah A. Capuano Michaela Cherieese Stewart Robin E. Vaughan James G. Collins** Gloria Tan Liza Hanley Williamson Peter Coyne James J. Torney Rebekah J. Crampton Kamukala** Kathryn A. White Housing Court Terry M. Craven Kerry A. Diamantopoulos Clerk Magistrates Chief Justice Kelli Ryan DiLisio J. D. Bowie Timothy F. Sullivan Leslie A. Donahue Judith M. Brennan Patricia M. Dunbar** Donna M. Ciampoli Deputy Court Administrator Lois M. Eaton Paul J. Hartnett Paul J. Burke Michael F. Edgerton** Brendan J. Moran* Carol A. Erskine Roger J. Oliveira* Justices Margaret S. Fearey** Christopher D. Reavey Anne K. Chaplin Patricia A. Flynn George P. Roper Rebekah J. Crampton Kamukala** Siobhan E. Foley Laura Rueli Fairlie A. Dalton Dana M. Gershengorn Robert L. Ryan Jr. Wilbur P. Edwards Jr. Joseph F. Johnston Donald P. Whitney Dina E. Fein Mary Beth Keating Robert G. Fields Kenneth J. King Diana H. Horan George F. Leary David D. Kerman** Paul D. Lewis** MaryLou Muirhead Stephen M. Limon** Maria Theophilis Judith A. Locke Jeffrey M. Winik Tracie L. Marciarelli Souza Anthony J. Marotta Clerk Magistrates Mary M. McCallum Mark R. Jeffries Garrett J. McManus Robert L. Lewis Joan M. McMenemy Peter Q. Montori Lawrence Moniz Nickolas W. Moudios Susan M. Trippi*

* Acting , **Recall

Annual Report on the State of the Massachusetts Court System 32

192 Massachusetts Trial Court Judges and Officials Judicial Assignments as of June 30, 2017

Land Court David M. Fuller** Matthew J. McDonough Melanie J. Gargas John F. Merrigan Chief Justice Anne M. Geoffrion Suzanne T. Seguin Judith C. Cutler Geoffrey R. German Anastasia Welsh Perrino Frances M. Giordano Deputy Court Administrator Patricia A. Gorman Superior Court Jill K. Ziter Barbara M. Hyland Susan Jacobs Chief Justice Justices Randy J. Kaplan Judith Fabricant Robert B. Foster Leilah A. Keamy Keith C. Long Richard J. McMahon Deputy Court Administrator Gordon H. Piper William F. McSweeny Elaina M. Quinn Alexander H. Sands III** Denise L. Meagher Karyn F. Scheier James V. Menno Justices Howard P. Speicher Maureen H. Monks John A. Agostini Michael D. Vhay Lee M. Peterson Mary K. Ames George F. Phelan C. William Barrett Recorder Stephen M. Rainaud Christopher K. Barry-Smith Deborah J. Patterson Lisa A. Roberts Thomas P. Billings Abbe L. Ross Heidi E. Brieger Probate and Family Court Mary Rudolph Black Michael K. Callan Arthur C. Ryley Anthony M. Campo Jr. Chief Justice David G. Sacks Beverly J. Cannone Angela M. Ordoñez Mary Anne Sahagian Richard J. Carey Robert A. Scandurra Richard J. Chin Deputy Court Administrator Richard A. Simons Rosemary Connolly Linda M. Medonis Peter Smola Thomas A. Connors Patrick W. Stanton Robert C. Cosgrove Justices Jennifer Rivera Ulwick Dennis J. Curran Joan P. Armstrong Virginia M. Ward Brian A. Davis Kathryn M. Bailey Claudine T. Wyner Kenneth V. Desmond Jr. Theresa A. Bisenius Thomas Drechsler Edward G. Boyle III Registers Renee P. Dupuis John D. Casey Felix D. Arroyo Elizabeth M. Fahey Megan H. Christopher Susan D. Beamish Timothy Q. Feeley Kevin R. Connelly Michael J. Carey John S. Ferrara Beth A. Crawford Pamela Casey O'Brien Kenneth J. Fishman Paul M. Cronan Tara DeCristofaro Daniel A. Ford David J. Dacyczyn Gina L. DeRossi Shannon Frison Edward F. Donnelly Jr. Daphne Devries E. Susan Garsh Brian J. Dunn Stephanie K. Fattman Mark C. Gildea Linda S. Fidnick Francis B. Marinaro Linda E. Giles Katherine A. Field Patrick W. McDermott Robert B. Gordon

* Acting , **Recall

Annual Report on the State of the Massachusetts Court System 33

193 Massachusetts Trial Court Judges and Officials Judicial Assignments as of June 30, 2017

Superior Court

Justices, continued Tina S. Page Clerk of Court Karen F. Green Gregg J. Pasquale Mary Elizabeth Adams S. Jane Haggerty** Laurence D. Pierce Deborah S. Capeless Mark A. Hallal J. Gavin Reardon Jr. Robert S. Creedon Jr. Bruce R. Henry David Ricciardone Michael J. Donovan Maureen B. Hogan Michael D. Ricciuti Thomas H. Driscoll Merita A. Hopkins Christine M. Roach Susan K. Emond Garry V. Inge Robert C. Rufo Laura S. Gentile Robert J. Kane Mary-Lou Rup Maura A. Hennigan Mitchell H. Kaplan Kenneth W. Salinger H. J. Jekanowski Jr. Jeffrey T. Karp Janet L. Sanders Dennis P. McManus Hélène Kazanjian William F. Sullivan Scott Nickerson Angel Kelley Brown Constance M. Sweeney Marc J. Santos Janet Kenton-Walker Salim R. Tabit Joseph E. Sollitto Jr. Leila R. Kern** Robert N. Tochka Michael A. Sullivan Maynard M. Kirpalani Richard T. Tucker Walter F. Timilty Peter B. Krupp Kathe M. Tuttman James F. Lang Robert L. Ullmann Peter M. Lauriat** Raymond P. Veary Jr. Edward P. Leibensperger Joshua I. Wall Joseph F. Leighton Jr. Richard E. Welch III Jeffrey A. Locke Douglas H. Wilkins John T. Lu Paul D. Wilson Mark D. Mason Daniel M. Wrenn Edward J. McDonough Jr. Raffi N. Yessayan Thomas F. McGuire Jr. Rosalind H. Miller Cornelius J. Moriarty II Christopher J. Muse Gary A. Nickerson

* Acting , **Recall

Annual Report on the State of the Massachusetts Court System 34

194

Statistical Appendix

Fiscal Data A‐3 Arraignments by Offense Type A‐4 Case Filings by Type A‐6 Case Filings by Department A‐8 Case Flow Metrics A‐10 Clearance Rate A‐12 Time to Disposition A‐13 Pending Cases Beyond Time Standards A‐14 Trial Date Certainty A‐15 Massachusetts Probation Service Caseload A‐16

195

Appendix – p. 2

196

Trial Court Fiscal Data FY2017 Breakdown of Trial Court Funding Dollar Amount Percent of Total Trial Court Operating Appropriations $639,411,246 96.7% Capital / Bond Funds $18,366,518 2.8% Automation Bond Funds $0 0.0% Grants, Trusts & Intergovernmental $3,782,034 0.6% Funds TOTAL $661,559,798 100.0%

Trial Court Expenditures from Dollar Amount Percent of Total Operating Accounts

Judicial Salaries $57,944,681 9.1% Court/Admin. Employee Salaries $408,109,395 64.2% Employee Related Expenses $22,330,635 3.5% Case Driven Expenses $17,501,120 2.8% Law Library Expenses $6,729,466 1.1% Office and Court Operations $59,269,220 9.3% Facility Rental, Maintenance and $64,222,465 10.1% Operation TOTAL $636,106,982 100.0%

Total Amount Interdepartmental and Reserve Transferred Between Transfers Accounts Within Department

Central Accounts (12,766,000) Superior Court Department 994,000 District Court Department 2,900,000 Probate Court Department 1,370,000 Land Court Department 75,000 Boston Municipal Court 460,000 Housing Court Department 177,000 Juvenile Court Department (520,000) Probation Accounts 7,150,000 Jury Commissioner 160,000

Appendix – p. 3

197 TrialȱCourtȱArraignments*ȱbyȱOffenseȱandȱOffenseȱType,ȱCY2012ȱtoȱCY2016ȱ

Offense CY2012 CY2013 CY2014 CY2015 CY2016 Total Arraignments 366,608 356,759 345,266 318,068 309,175 Person 88,129 84,209 82,892 79,510 78,628 Murder/Manslaughter 1,025 988 846 463 411 Assaults 55,701 53,199 53,143 52,759 52,195 Rape/Sex Assault 6,495 5,897 6,088 5,036 5,203 Robbery 2,899 2,812 2,433 2,255 1,980 Threat/Intimidation 11,894 11,204 10,880 10,192 10,020 Restraining/Harassment Order Violations 7,828 7,580 7,144 6,498 6,774 Other Violent Offense 2,287 2,529 2,358 2,307 2,045 Property 88,129 84,722 79,898 68,268 65,373 Larceny/Fraud 41,444 40,500 39,320 33,554 31,923 Burglary/B&E 11,499 10,750 8,777 7,589 7,061 Destruction of Property 11,591 10,332 9,900 9,091 9,127 198 Receiving/Possession Stolen Property 8,445 7,755 6,926 5,533 5,337 Forgery/Uttering 7,614 7,670 7,140 5,935 5,750 Arson/Burn 337 310 266 137 240 Trespass 6,013 5,766 6,113 5,501 5,004 Other Property Offense 1,799 1,639 1,456 928 931 Drug 42,657 38,917 39,129 36,020 34,332 Class A 7,945 9,304 10,665 10,719 9,627 Class B 12,080 11,157 11,315 10,907 11,398 Class C 1,879 1,939 1,835 1,724 1,629 Class D 4,902 4,390 3,535 2,889 2,665 Class E 3,227 3,039 3,162 2,967 2,656 Conspiracy to Violate Drug Laws 4,022 4,051 3,816 3,045 2,673 Possession Hypodermic Needle 33 71415 School/Park Violation 5,017 1,978 1,612 1,252 1,021 Other Drug Offense 3,582 3,056 3,182 2,503 2,648

Appendix – p. 4 TrialȱCourtȱArraignments*ȱbyȱOffenseȱandȱOffenseȱType,ȱCY2012ȱtoȱCY2016ȱ

Offense CY2012 CY2013 CY2014 CY2015 CY2016 Motor Vehicle 98,437 101,049 100,081 93,153 92,443 M.V Homicide 106 121 108 93 102 Driving Under Influence 16,503 15,596 15,668 14,395 15,259 Other Major Motor Vehicle Offense 81,828 85,332 84,305 78,665 77,082 Public Order 48,643 47,852 43,266 41,117 38,399 Disturbing/Disorderly 14,273 13,495 12,160 10,598 10,053 Firearm Offense 8,616 9,781 8,961 9,507 8,791 Prostitution 1,198 1,218 926 859 860 Liquor Law Violation 3,236 2,508 1,839 1,269 1,211 Other Public Order Offense 21,320 20,860 19,380 18,884 17,484 *Source: Massachusetts Probation Service. 199

Appendix – p. 5 FiveȬYearȱSummaryȱofȱTrialȱCourtȱCaseȱFilingsȱbyȱType,ȱFY2013ȱtoȱFY2017 FY2013 FY2014 FY2015 FY2016 FY2017 All Case Types 999,063 991,708 960,412 912,757 917,874 Criminal Matters Criminal 233,614 233,143 219,740 209,791 197,900 Criminal Show Cause Hearings 78,940 90,963 81,042 94,607 91,376 Criminal Warrants 6,828 8,928 8,158 8,995 8,226 Sub-Total 319,382 333,034 308,940 313,393 297,502 Civil - Regular 90,511 84,767 79,993 74,331 65,240 Servicemembers 11,448 Sub-Total 90,511 84,767 79,993 74,331 76,688 Civil - Specialized Matters Small Claims 101,975 99,726 103,004 106,071 98,439 Supplementary Proceedings 28,387 20,987 16,970 16,679 7,748 200 Summary Process 41,559 40,871 41,812 40,946 40,503 Restraining Orders 46,141 44,153 42,907 31,155 43,087 Harassment Orders 1,888 1,441 1,467 12,505 1,435 Mental Health 12,717 12,534 13,069 13,903 16,598 CMVI Appeals 9,763 12,960 12,862 12,969 13,826 Administrative Warrants 15,729 15,916 10,743 13,395 13,482 Other Specialized Civil 2,115 2,716 3,521 3,611 3,995 Sub-Total 260,274 251,304 246,355 251,234 239,113 CMVI Hearings 151,073 148,264 132,192 130,254 129,913 Other Hearings Show Cause Hearings (Applications) 7,135 9,347 14,206 15,042 13,175 Non-MV Infraction Civil Hearings 4,529 5,475 4,951 5,232 5,008 Sub-Total 11,664 14,822 19,157 20,274 18,183

Appendix – p. 6 FiveȬYearȱSummaryȱofȱTrialȱCourtȱCaseȱFilingsȱbyȱType,ȱFY2013ȱtoȱFY2017,ȱcontinued FY2013 FY2014 FY2015 FY2016 FY2017 All Case Types 999,063 991,708 960,412 912,757 917,874 Juvenile Matters Juvenile Delinquency 7,800 10,055 10,362 9,694 8,674 Youthful Offender 84 151 216 218 151 CRA/CHINS Applications 5,624 5,843 6,160 5,712 5,388 Care & Protection Petitions 2,669 3,663 3,384 3,855 3,462 Sub-Total 16,177 19,712 20,122 19,479 17,675 Probate 47,006 48,593 42,942 39,461 38,128 Guardianship 11,920 11,174 13,229 11,891 12,594 Child Welfare and Adoption 2194 2,894 2,621 2,346 2,423 Domestic Relations Paternity 19,101 17,560 16,650 16,010 15,340 Divorce 26,736 24,918 23,954 23,692 23,443 201 Modification/Contempt 50,191 50,079 49,271 47,958 46,476 Other Domestic Relations 442 398 00 Sub-Total 96,470 92,955 89,875 87,660 85,259 Appeals 1,013 875 928 775 396

Notes: 1. Probate & Family: Probate cases include, Probate Estates, Equity, and Change of Name. 2. Child Welfare and Adoption includes: Child Welfare cases in the Probate and Family Court and Adoption cases in the Juvenile Court. 3. Only the Boston Municipal and Juvenile Court Departments separate out Harassment Orders from Restraining Orders. 4. Case filings do not include Probation Violation Hearings.

Appendix – p. 7 TrialȱCourtȱCaseȱFilingsȱbyȱDepartmentȱandȱType,ȱFY2017ȱ Probate BMC District Housing Juvenile Land Superior Total & Family All Case Types 80,400 582,710 40,381 34,483 18,210 138,873 22,817 917,874 Criminal Matters Criminal 22,447 169,669 1,002 425 4,357 197,900 Criminal Show Cause Hearings 16,598 72,392 2,386 91,376 Criminal Warrants 1,379 6,847 8,226 Sub-Total 40,424 248,908 3,388 425 4,357 297,502 Civil - Regular 5,232 33,413 4,514 3,790 18,291 65,240 Servicemembers 11,448 11,448 Sub-Total 5,232 33,413 4,514 15,238 18,291 76,688 Civil - Specialized Matters Small Claims 9,847 87,021 1,571 98,439 Supplementary Proceedings 777 6,884 87 7,748 Summary Process 790 11,777 27,936 40,503 202 Restraining Orders 3,089 36,985 3,013 43,087 Harassment Orders 973 462 1,435 Mental Health 1,741 14,697 160 16,598 CMVI Appeals 2,043 11,783 13,826 Administrative Warrants 2,814 9,494 1,174 13,482 Other Specialized Civil 67 888 68 2,972 3,995 Sub-Total 22,141 179,529 30,768 690 2,972 3,013 239,113 CMVI Hearings 12,574 117,339 129,913 Other Hearings Show Cause Hearings (Applications) 13,175 13,175 Non-MV Infraction Civil Hearings 3,297 1,711 5,008 Sub-Total 3,297 1,711 13,175 18,183

Appendix – p. 8 TrialȱCourtȱCaseȱFilingsȱbyȱDepartmentȱandȱType,ȱFY2017,ȱcontinuedȱ

Probate BMC District Housing Juvenile Land Superior Total & Family All Case Types 80,400 582,710 40,381 34,483 18,210 138,873 22,817 917,874 Juvenile Matters Juvenile Delinquency 26 8,648 8,674 Youthful Offender 151 151 CRA/CHINS Applications 5,388 5,388 Care & Protection Petitions 3,462 3,462 Sub-Total 26 17,649 17,675 Probate 19 38,109 38,128 Guardianship 1,014 11,580 12,594 Child Welfare and Adoption 1,130 1,293 2,423 Domestic Relations Paternity 381 14,959 15,340 203 Divorce 23,443 23,443 Modification/Contempt 46,476 46,476 Other Domestic Relations Sub-Total 381 84,878 85,259 Appeals 29 198 169 396

Appendix – p. 9 CaseȱFlowȱMetricsȱ

The Trial Court looked to the work of the National Center for State Courts (NCSC) in the development of performance metrics for Massachusetts. In 2005 the NCSC developed CourTools, a streamlined set of ten trial court performance measures. Four CourTools measures developed by NCSC focus on timeliness and expedition: clearance rate, time to disposition, age of pending caseload, and trial date certainty. In 2006, the Trial Court adopted these four CourTools measures as a common set of metrics for all seven court departments.

Clearance Rate Purpose The number of outgoing Clearance rate measures whether the court is keeping up with its incoming caseload. If cases cases as a percentage of are not disposed of in a timely manner, a backlog of cases awaiting disposition will grow. This the number of incoming performance measure is a single number that can be compared within the court for any and all cases. case types, on a monthly or yearly basis, or between one court and another. Knowledge of clearance rates by case type can help a court pinpoint emerging problems and indicate where improvements can be made.

204 Time to Disposition Purpose The percentage of cases This measure, used in conjunction with Clearance Rates and Age of Active Pending Caseload, disposed or resolved is a fundamental management tool that assesses the length of time it takes a court to process within established time cases. It measures a court’s ability to meet prescribed time standards. frames.

Age of Pending Cases Purpose The number of pending Knowing the age of the active cases pending before the court is most useful for addressing cases that are beyond the three related questions: Does a backlog exist? Which cases are a problem? Given past and disposition date set by the present performance, what is expected in the future? time standards.

Trial Date Certainty Purpose The number of times A court's ability to hold trials on the first date they are scheduled to be heard (trial date cases disposed by trial are certainty) is closely associated with timely case disposition. This measure provides a tool to scheduled for trial. evaluate the effectiveness of calendaring and continuance practices. For this measure, “trials” includes jury trials, bench trials (also known as nonjury trials), and adjudicatory hearings in juvenile cases.

Appendix – p. 10 CaseȱFlowȱMetrics*ȱbyȱTrialȱCourtȱDepartment,ȱFY2017ȱ

Number of Cases % Trials Disposed %Disposed w/i Trial Court Department Clearance Rate Pending Beyond by Second Trial Time Standards Time Standards Date Boston Municipal Court 99.3% 92.9% 1,136 71.7% Civil 99.9% 97.0% 350 78.8% Criminal 98.5% 86.5% 786 69.3% District Court 101.2% 91.5% 12,253 70.2% Civil 97.4% 96.1% 7,000 65.7% Criminal 103.3% 89.1% 5,253 70.4% 205 Housing Court 99.8% 93.1% 775 80.6% Juvenile Court 92.5% 61.6% 3,983 Civil 93.7% 76.3% 3,906 Criminal 87.8% 61.6% 77 Land Court 180.0% 26.6% 7,490 98.0% Probate & Family Court 109.7% 81.2% 31,140 98.5% Superior Court 101.8% 64.2% 14,169 47.3% Civil 101.4% 74.1% 10,924 66.0% Criminal 103.4% 20.1% 3,245 34.5% All Departments 104.5% 89.1% 70,946 67.8%

*The metrics analyses does not include all case filings.

Appendix – p. 11 ClearanceȱRate*ȱbyȱTrialȱCourtȱDepartment,ȱFY2013ȱtoȱFY2017ȱ FY2013 FY2014 FY2015 FY2016 FY2017 Trial Court Department New Disposed Clearance Clearance Rate Cases Cases Rate Boston Municipal Court 95.8% 97.7% 101.5% 104.8% 39,596 39,333 99.3% Civil 96.6% 100.1% 99.9% 104.8% 23,892 23,859 99.9% Criminal 94.8% 94.5% 103.3% 104.8% 15,704 15,474 98.5% District Court 94.4% 101.0% 100.9% 100.0% 239,099 241,924 101.2% Civil 93.1% 106.8% 103.7% 98.1% 85,959 83,760 97.4% Criminal 95.0% 98.3% 99.6% 100.8% 153,140 158,164 103.3%

206 Housing Court 100.7% 98.9% 101.5% 100.1% 38,670 38,605 99.8% Juvenile Court** 96.5% 2,134 1,974 92.5% Civil 96.5% 1,708 1,600 93.7% Criminal 96.0% 426 374 87.8% Land Court 116.7% 92.1% 205.4% 88.6% 15,226 27,411 180.0% Probate & Family Court 86.3% 94.6% 91.4% 92.6% 19,787 21,708 109.7% Superior Court*** 103.2% 100.3% 79.7% 85.1% 23,154 23,568 101.8% Civil 103.5% 100.5% 82.6% 89.4% 18,758 19,022 101.4% Criminal 101.4% 99.4% 69.5% 69.0% 4,396 4,546 103.4% All Departments 95.2% 99.8% 101.8% 98.1% 377,666 394,523 104.5%

* The metrics analyses does not include all case filings. ** Due to conversion issues with the Court’s case management system, FY13-FY15 data was not available for the Juvenile Court Department. *** Figures for the Superior Court do not include Appeals.

Appendix – p. 12 TimeȱtoȱDisposition*ȱbyȱTrialȱCourtȱDepartment,ȱFY2013ȱtoȱFY2017ȱ FY2013 FY2014 FY2015 FY2016 FY2017 Disposed Cases % Within Trial Court Department Within Time Beyond Time Total Time % Disposed Within Time Standards Standards Standards Standards Boston Municipal Court 95.3% 93.8% 90.4% 91.2% 39,306 36,503 2,803 92.9% Civil 97.0% 97.2% 93.5% 93.8% 23,859 23,135 724 97.0% Criminal 93.0% 89.3% 85.9% 87.4% 15,447 13,368 2,079 86.5% District Court 93.0% 91.2% 87.7% 91.3% 241,950 221,477 20,473 91.5% Civil 97.2% 96.0% 87.7% 97.0% 83,786 80,545 3,241 96.1% Criminal 90.6% 88.9% 87.8% 88.7% 158,164 140,932 17,232 89.1% Housing Court 89.9% 89.4% 90.5% 90.9% 40,493 37,692 2,801 93.1% Juvenile Court** 73.4% 61.2% 20,460 12,597 7,863 61.6% 207 Civil 79.0% 61.1% 20,086 12,375 7,711 61.6% Criminal 69.0% 61.5% 374 222 152 59.4% Land Court 59.9% 64.3% 54.9% 58.6% 5,626 1,494 4,132 26.6% Probate & Family Court 83.0% 81.1% 81.5% 78.2% 53,291 43,275 10,016 81.2% Superior Court*** 67.8% 66.6% 66.8% 70.3% 22,535 14,474 8,061 64.2% Civil 74.3% 73.6% 74.1% 76.0% 18,403 13,642 4,761 74.1% Criminal 35.6% 31.9% 33.4% 39.2% 4,132 832 3,300 20.1% All Departments 89.1% 88.4% 86.3% 87.0% 423,661 367,512 56,149 86.7% * The metrics analyses does not include all case filings. ** Due to conversion issues with the Court’s case management system, FY13-FY15 data was not available for the Juvenile Court Department. *** Figures for the Superior Court do not include Appeals.

Appendix – p. 13 NumberȱofȱPendingȱCases*ȱBeyondȱtheȱTimeȱStandardsȱbyȱTrialȱCourtȱDepartmentȱ FY2013ȱtoȱFY2017ȱ FY2013 FY2014 FY2015 FY2016 FY2017 FY2016 to FY2017 Trial Court Department Year-End Year-End Year-End Year-End Year-End % Difference Boston Municipal Court 1,186 1,849 1,681 1,140 1,136 -0.4% Civil 245 707 469 402 350 -12.9% Criminal 941 1,142 1,212 738 786 6.5% District Court 23,950 10,536 9,284 12,365 12,253 -0.9% Civil 15,372 3,560 2,958 6,047 7,000 15.8% Criminal 8,578 6,976 6,326 6,318 5,253 -16.9% Housing Court 2,647 2,935 1,313 1,027 775 -24.5% Juvenile Court** 4,429 3,983 -10.1% Civil 4,346 3,906 -10.1% 208 Criminal 83 77 -7.2% Land Court 10,314 10,252 10,378 10,521 7,490 -28.8% Probate & Family Court 28,876 37,912 47,956 54,339 31,140 -42.7% Superior Court*** 7,840 7,150 5,961 7,163 14,169 97.8% Civil 5,186 4,605 3,401 5,194 10,924 110.3% Criminal 2,654 2,545 2,560 1,969 3,245 64.8% All Departments 74,813 70,634 76,573 90,984 70,946 -22.0% * The metrics analyses does not include all case filings. ** Due to conversion issues with the Court’s case management system, FY13-FY15 data was not available for the Juvenile Court Department. ***Figures for the Superior Court do not include Appeals. The number of cases pending beyond the time standards at the end of 2010 was adjusted to reflect the increase in the number of District Court civil cases captured for analysis due to improved reporting of case status due to expanded Trial Court automation, and to reflect the disposal of a large number of Probate and Family Court cases that had gone without activity for at least 24 months.

Appendix – p. 14 TrialȱDateȱCertainty*ȱbyȱTrialȱCourtȱDepartment,ȱFY2013ȱtoȱFY2017ȱ

% Trials Disposed By Second Trial Date Trial Court Department FY2013 FY2014 FY2015 FY2016 FY2017 Boston Municipal Court83.4% 79.0% 81.8% 74.9% 71.7%

Civil 82.4% 80.0% 82.9% 83.4% 78.8% Criminal 83.7% 78.7% 81.5% 71.9% 69.3% District Court 68.3% 69.8% 71.6% 70.7% 70.2%

Civil 68.1% 64.2% 66.5% 59.4% 65.7% Criminal 68.3% 70.1% 71.8% 71.4% 70.4% Housing Court81.4% 81.3% 82.2% 82.6% 80.6% 209 Juvenile Court** Civil Criminal Land Court93.8% 96.0% 86.1% 100.0% 98.0% Probate & Family Court 98.0% 98.6% 98.2% 97.3% 98.5% Superior Court***66.1% 66.9% 75.1% 48.2% 47.3%

Civil 70.2% 72.9% 75.4% 59.7% 66.0% Criminal 61.5% 60.9% 74.6% 40.8% 34.5% All Departments74.1% 74.6% 73.0% 70.7% 67.8% * The metrics analyses does not include all case filings. ** Due to conversion issues with the Court’s case management system, FY13-FY15 data was not available for the Juvenile Court Department. *** Figures for the Superior Court do not include Appeals.

Appendix – p. 15 MassachusettsȱProbationȱServiceȱ FiscalȱYearȱ2017ȱYearȬEndȱProbationȱCaseloadȱ SupervisionȱCaseloadȱforȱJuneȱ2017ȱ

Boston District Juvenile Probate & Superior Total Supervision Type Municipal Court Court Family Court Court Supervision Court

Administrative Supervision Cases 2,162 19,831 970 870 23,833 Care and Protection (Petitions) 3,930 3,930 Children Requiring Assistance Cases 2,875 2,875 Dispute Intervention Mediations 2,298 2,298

210 Driving Under the Influence Cases 462 10,229 10,691 Pre-Trial Supervision Cases 1,113 6,071 570 1,256 9,010 Risk Need Supervision Cases 1,231 9,710 788 5,700 17,429 Seek Work Supervision Cases 135 135 Total Supervision 4,968 45,841 9,133 2,433 7,826 70,201

Appendix – p. 16 211 Public Information Office

John Adams Courthouse, Suite 1100 One Pemberton Square Boston, Ma 02108-1724 Phone: (617)557-1114 http://www.mass.gov/courts

212

Annual Address: State of the Judiciary

October 26, 2017

Great Hall, John Adams Courthouse Boston, Massachusetts

Remarks by

Ralph D. Gants Chief Justice of the Supreme Judicial Court

213

Each year, as I stand before you to reflect on what we have accomplished and what we

hope to achieve, it is appropriate to begin by expressing my thanks to the men and women whose

hard work and dedication to the rule of law and the provision of justice with dignity and speed

sustain the Commonwealth's courts: judges and justices, clerks, court officers, probation

officers, court facilities employees, and administrative staff. We accomplish nothing worthwhile

without you.

I also give thanks every day for the leadership of Chief Justice Paula Carey, Court

Administrator Jon Williams, and the chief justices and deputy court administrators of our seven

Trial Court departments; and for the fellowship of our appellate justices. I am grateful for the

close collaboration we in the judiciary have enjoyed with the leadership of the Massachusetts Bar

Association, most recently with President Chris Sullivan and Chief Operating Officer and Chief

Legal Counsel Marty Healy; with the leadership of the Boston Bar Association, most recently

with President Mark Smith and Executive Director Rich Page; and with the leaders of the other

regional and affinity bar associations. I appreciate the countless contributions of the private bar to making our justice system function more fairly and effectively, whether through pro bono

work, committee service, or public advocacy. I recognize how fortunate we are to have legal

services attorneys, prosecutors, assistant attorneys general, and CPCS attorneys who do so much

important legal work for so little pay. And I am immensely thankful for the support of our

friends and partners in the Legislature -- most prominently, Speaker DeLeo, Senate President

Rosenberg, Ways and Means Chairs Sánchez and Spilka, and Judiciary Chairs Cronin and

Brownsberger -- and in the Executive branch -- most prominently, Governor Baker, Lieutenant

214 Governor Polito, and Chief Legal Counsel Lon Povich. I speak to Chief Justices throughout the country, so I appreciate what a great blessing it is to have legislators and a governor who understand what we do in our courts, who share our commitment to solving the problems that bring people to court, who are willing to listen and to be guided by the facts, and who work with us in the spirit of collaboration, collegiality, and mutual respect to further the cause of fair and equal justice.

I have served in the Massachusetts judiciary for nearly a generation and, with the 325th anniversary of the SJC approaching next month, I am mindful that we stand on the shoulders of the fine judges, clerks, and staff who have served before us; each generation bestows its legacy on the next. But I think it fair to say that our judiciary today has never been more thoughtful, more willing to explore better ways to do things we have always done, and more focused on addressing the problems that plague our Commonwealth, including opiate use disorder, youth violence, mental health issues, homelessness, child neglect, and intimate partner abuse. I am proud of what we have already accomplished, but I know that we have the talent, will, and commitment to do even more in the future. So let me now take stock of where we stand, what we have done, and what we still need to do.

You may remember that last year I spoke about the reasons for expanding the Housing

Court to every corner of the Commonwealth. On July 1, thanks to the leadership of Speaker

DeLeo, Senate President Rosenberg, Senator Spilka, and Representative Walsh, the benefits of a

Housing Court were brought to every resident of Massachusetts. It is no easy task to implement this major expansion in just a matter of months. Chief Justice Tim Sullivan, Deputy Court

Administrator Paul Burke, and the remarkable judges, housing specialists, clerks, and staff of the

Housing Court simply make it look easy. I thank them for their extraordinary efforts.

215 We currently have 26 drug courts, three juvenile drug courts, and one family drug court;

seven mental health courts; five veterans treatment courts; two homeless courts; and a family

resolutions specialty court. Unlike the Housing Court, these courts are not separate departments,

but specialized sessions within existing Trial Court departments. Still, it takes additional funding

to support them and, in particular, to pay for the clinicians and probation officers who staff them.

I hope that in the future we will be able to continue to expand these specialty courts so that, as is now true of our Housing Court, they will be available to all who need them, wherever they live

in the Commonwealth -- especially our drug courts, which are so desperately needed at a time

when we are losing more than five people every day to opioid overdoses.1

The Governor declared last Thursday to be Conflict Resolution Day, and I appreciate his

recognition of the day as part of Conflict Resolution Week. That same Thursday, at a wonderful

event in this building sponsored by the MBA Dispute Resolution Section, I declared -- albeit

without the fanfare of a formal written proclamation -- that every day in our courts is conflict

resolution day, because that is what we do each and every day in all of our civil courts. At that

event, it was noted that modern alternative dispute resolution began in Massachusetts in the

1970s, with our Trial Court's embrace of Professor Frank Sander’s concept of a Multi-Door

Courthouse. Professor Sander coined the phrase "Let the forum fit the fuss," and I know of no

better description of what we are trying to accomplish in our courts to resolve conflicts more

fairly, more efficiently, and more amicably. No longer does one size fit all; the Land Court,

Probate and Family Court, and Superior Court have all developed a menu of litigation options that allow parties to resolve their conflicts in a manner that best fits their particular case. The challenge now is to get attorneys and litigants to make use of those options. I am grateful to the bar for all the pro bono hours you have devoted to help resolve the conflicts that come to our

216 courts through mediation, conciliation, arbitration, and case assessment, especially in our Probate

and Family Courts; you touch so many lives when you do so. And our District Court and Boston

Municipal Court have created specialized civil sessions to ensure that civil cases in these courts

get the time and attention they deserve, so that they can be resolved in a cost-effective manner

appropriate to the amount of money at issue. We will be closely monitoring the success of these

specialized civil sessions and will be conferring with the bar before any decision is made to

increase the procedural limit in the District Court and BMC from $25,000 to $50,000.

We cannot discuss the challenge of making the provision of justice more efficient without

also discussing our need to get up to date in our use of information technology. We are working

toward becoming a court system where nearly all filing is e-filing; where attorneys and self-

represented litigants receive electronic or text reminders of court dates; where the court file is

digitally available to the judge and to all parties in a case; where judges can quickly access every

document in a case, whether they are on the bench, in a lobby conference, or at their desk writing

an opinion; and where judicial orders and opinions are transmitted immediately and

electronically. We are making progress toward this goal. In the Appeals Court, approximately

85% of criminal briefs and 65% of civil briefs are now filed electronically, and as a result, most

Appeals Court justices spend far more time reading briefs on their iPads than on paper. In the

SJC, 85% of applications for direct and further appellate review are now filed electronically.

And e-filing and other digital projects are now proceeding apace in the Trial Court, as you will hear from Jon Williams. In fact, the Land Court is even working with the Registers of Deeds

Association and the Secretary of State to initiate a pilot program that would permit the e-filing of documents for registered land.

217 We need to make better use of video conferencing, whether through Skype on a computer

or FaceTime on a smartphone, or sometimes simply with conference calls, to reduce the number

of times that attorneys and parties need to appear in court. Thanks to the Legislature, we now

have video conferencing capabilities in every courthouse and on every Trial Court judge's laptop.

We now conduct close to four thousand video events each quarter, and the number is growing

daily. We also need to explore whether in some cases, most likely small claims and civil motor vehicle infractions, we can reach a fair resolution without ever asking the litigants physically to come to court. Not every matter and not every motion justifies the time, cost, and burden of traveling to court. And when people do need to come to court, we must be more respectful of their time through staggered scheduling to avoid long waits. If lawyers cannot resolve court matters efficiently, then even fewer litigants will be able to afford lawyers.

Last spring, the Juvenile Court, Superior Court, District Court, and BMC adopted best

practices in sentencing intended to ensure that each defendant receives an individualized

sentence that takes into account the gravity and circumstances of the crime, the impact on the

victim and the victim’s needs, and the defendant’s criminal history and treatment needs. Two

fundamental principles emerge from these best practices. The first is a variation on the

Hippocratic oath taken by every physician: not "do no harm," because every just sentence

inevitably harms the defendant and his or her family, but do no needless harm -- that is, do not

impose a sentence longer than justice requires. The second principle is that, in imposing

conditions of probation, less is more: a judge should identify which conditions are necessary to

reduce the defendant's risk of committing new crimes, and impose only those, because needless

conditions simply increase the burdens of probation and the risk of probation revocation without

having any beneficial effect on public safety.

218 Our focus on the importance of individualized sentencing decisions inevitably focuses

attention on the statutes that are the greatest impediment to sentences that fit the crime and the

offender: mandatory minimum sentences. In a prior State of the Judiciary address, a very wise

Chief Justice of the SJC said, "I opposed then and continue to oppose a system of mandatory

sentencing totally eliminating judicial discretion to consider mitigating and aggravating

circumstances." That wise Chief Justice was not me (the reference to "wise" should have made

that clear); it was Chief Justice Edward Hennessey in his State of the Judiciary address in 1980.2

A few months ago, the esteemed attorneys and judges of the American Law Institute joined Chief Justice Hennessey's call for an end to mandatory minimum sentences when the ALI adopted a new Model Penal Code of Sentencing at its annual meeting in May. Every time a judge imposes a sentence higher than the judge thinks just because of a mandatory minimum sentence or, more likely, because of a plea to an agreed-upon disposition chosen by the prosecutor as the price for dropping the mandatory minimum charge, the principle of "do no needless harm" is violated. School zone mandatory minimums in drug cases are the most random of the mandatory minimums, because they depend solely on the proximity of the defendant to a school or park at the time of arrest, regardless of whether the defendant had any intention of selling to anyone on or near school or park grounds. I am sure that Chief Justice

Hennessey would be grateful that the Legislature this year is taking a hard look at the wisdom of mandatory minimum sentences.

As for the broader debate regarding criminal justice reform that is now underway in the

Legislature, I can keep my remarks brief because so much has been said so well by the bar associations. Last spring the MBA's Criminal Justice Reform Working Group issued a report

219 that, among other topics, clearly and carefully articulates the importance of considering defendants' ability to pay in setting bail and in assessing criminal fines and fees, or in authorizing their waiver. Last month, the Boston Bar Association Criminal Justice Reform Working Group issued its report, "No Time to Wait: Recommendations for a Fair and Effective Criminal Justice

System." This 74-page report, clearly written, thoroughly researched, and carefully considered, comprehensively describes the urgent need for reform. These reports should be required reading for anyone considering the question of criminal justice reform in Massachusetts.

I will focus on the fundamental takeaway from the research conducted by the Council of

State Governments: effective criminal justice reform will reduce the crime rate, not increase it.

According to CSG, 48% of those released from houses of correction and 38% of those released from state prison in Massachusetts were reconvicted within three years of their release.3 The lesson learned from CSG is that, if we can reduce this rate of recidivism, we can reduce the rate of crime. And we can reduce this rate of recidivism by providing drug treatment, mental health treatment, and cognitive behavioral therapy to those who presently cannot get this treatment in our prisons and houses of correction. We can reduce this rate of recidivism by giving defendants reasonable incentives to seek such treatment, such as earned good time and parole. We can reduce the rate of recidivism by reducing the degree to which a criminal conviction makes it harder to keep a driver's license, or get a job, or obtain further education, or find stable housing.

We can reduce the rate of recidivism by diminishing the financial burden of fees and fines that sit like an albatross on the shoulders of those struggling to make a living and pay child support, and by allowing our probation officers to focus on rehabilitation rather than bill collection. We can reduce the rate of recidivism by taking the high risk 18-24 year old adults, whose recidivism rate is the highest of any age cohort,4 and enrolling them in post-release programs with a

220 demonstrated rate of success, as Chief Justice Carey will discuss. If we take these steps, then we can finally make a dent in that persistent recidivism rate and reduce the overall crime rate. But if we continue to allow many defendants to leave our prisons and houses of correction with untreated drug and mental health problems, with no job training or job experience, and then continue to place obstacles in their way when they try to find lawful employment, we can be sure that they will still find work; it might just not be the work we want them to find. Because, as one formerly incarcerated defendant noted at a recent MassINC forum, "The streets are always hiring."5

We have all heard the objections:

"We will be releasing violent criminals and drug dealers." But they will inevitably be released; we cannot lock them up forever, nor can we afford to. The question most relevant to crime reduction is what will they do when they return to the street? And if convicted criminals have earned early release by doing everything we want them to do behind bars, why would we not reward that behavior by giving them earned good time and the possibility of release on parole?

"We are 49th among the states in our rate of incarceration; we've gone as far as we can safely go." But we incarcerate four times as many people today as we did 40 years ago, at a time when our crime rate was about the same.6 And our focus is less on reducing the length of sentences than it is on reducing needlessly long sentences and, once sentenced, on giving prisoners the opportunity to shorten their sentence if they do the things we want them to do while incarcerated to improve their likelihood of success when they get out.

But civil and criminal justice reform are not our only challenges; there are at least two others we are actively engaged in confronting. The first involves the daily challenges confronted by judges in our Probate and Family Court. The judges in our Probate and Family Court are deeply committed to helping families in need address the complex problems that bring them to court. And, under the leadership of its Chief Justices, Paula Carey and now Angela Ordoñez, the

Probate and Family Court has been wonderfully inventive in finding ways to leverage our scarce

221 judicial resources to do its work: limited assistance representation began in the Probate and

Family Court; the court was the first to use the volunteer attorneys in retired Judge Edward

Ginsburg's terrific program, Senior Partners for Justice, to provide pro bono legal assistance; and no court has been more aggressive in developing mediation and conciliation programs. But yet, the work load continues to be overwhelming. As a result, Probate and Family Court judges are retiring before age 70 at the highest rate of all our Trial Court departments, and younger judges are running at a pace they cannot reasonably sustain.

When you think about it, it is not hard to see why this is happening. The judges charged with resolving Family Court disputes -- alimony, property division, child custody, and guardianship -- must understand not only a single transaction or event, but each family's entire history, including the relationship between the spouses, their abilities as parents, and the needs of their children or, in some guardianship cases, the needs of an elderly parent or a drug-addicted adult child. The judges must also determine each family's income, assets, and potential financial resources, including their capacity to earn. And in the vast majority of cases, they need to figure out all these issues when at least one party is without the assistance of counsel. In no other court do we have so many self-represented parties being asked to litigate disputes as complex, as emotional, as enduring, and as life-changing, as in the Probate and Family Court. The challenge of proceeding without the benefit of counsel is illustrated by the routine questions a clerk will ask a spouse seeking a divorce: "Where are the Rule 401 Financial Statements? Do you have a signed written Separation Agreement? Have you prepared a written parenting plan and used the child support guidelines to determine child support? Have you taken the mandatory parenting course?" Add to this challenge the substantial burden of issuing written decisions in every divorce case, where they are required to address numerous statutory factors,7 all with a shortage

222 of law clerk help due to budget cuts. And even after the judge issues a decision, the litigation rarely ends, because the parties frequently return seeking modifications based on changes in circumstances, and the cycle starts all over again. The burdens we place on our Probate and

Family Court judges are simply not sustainable; we need to reimagine how we do justice in our

Probate and Family Court.

And we are in the process of doing so. Chief Justice Carey and Chief Justice Ordoñez

have already begun that process, and they have each been immersed in the work of this court for

more than thirty years. And I, with the support of Chief Justices Carey and Ordoñez, have done

what I have always done as a Justice of the SJC when I have faced a problem too difficult for me

to resolve: I have asked Justice Margot Botsford for help. Justice Botsford will offer the Chief

Justices the fresh perspective of an informed outsider, and I am deeply grateful that she has

agreed to do so in her supposed retirement, pro bono. She is already hard at work speaking with

judges, probation officers, staff, and attorneys, and she will work with Chief Justice Carey, Chief

Justice Ordoñez, and others in an attempt to reimagine the delivery of justice to make it less

burdensome for judges and more effective for litigants. I do not know how this journey will end,

but I am confident, knowing the extraordinary talent of those making this journey, that by next

fall we will be well underway in rethinking how we do justice in the Probate and Family Court.

The second challenge we face is the shortage of available attorneys to represent parents

and children in care and protection cases when the Department of Children and Families has

removed a child from parental custody. The number of these care and protection cases jumped

by 45% from Fiscal Year 2013 to Fiscal Year 2016. As a matter of statute, the parents and child

are entitled to an evidentiary hearing within 72 hours of the removal of custody to determine

whether DCF's temporary custody of the child will continue until the matter is finally resolved,

223 and each parent and child is entitled, if he or she is indigent, to individualized representation by an attorney at that hearing.8 The judges of the Juvenile Court stand ready to hear these cases and protect the rights of children and families, but too often we lack the attorneys needed to proceed with the 72-hour hearing within the required 72 hours; in Hampden County, since March of this year, approximately half of these 72-hour hearings have had to be continued because we could not find attorneys to represent all the necessary parties; and other counties are facing similar difficulties in finding counsel to take these cases, albeit not to the same extent as Hampden

County. As a result, parents and children are being denied their statutory right to a timely adversarial evidentiary hearing regarding a matter that affects a vital liberty interest -- a parent’s right to retain custody of his or her child. I created a committee last fall, led by former Chief

Justice Roderick Ireland and Chief Justice Carey, that brought together the leadership of CPCS, the Juvenile Court, and DCF, as well as legislative leaders, in an effort to address this problem, and they have worked diligently to attempt to encourage more attorneys to be trained and willing to perform this important work. But the problem so far has eluded resolution, and may even be growing worse. It is time to recognize this for what it is -- a constitutional emergency; we simply cannot continue to allow so many parents and children to be denied their right to a timely

72-hour hearing. We need CPCS and the bar to find new ways to encourage and train more attorneys to do this work, especially in Western Massachusetts. We need our law schools to provide courses and clinical training in family law, and to encourage law students to take advantage of these opportunities so that they are ready, once they pass the bar, to take on this work. And, although I recognize the fiscal challenges we face, I ask the Legislature to consider increasing the hourly rate for CPCS bar advocates who represent parents and children in family law cases from $55 to $80 so that more attorneys can afford to do this work.

224 I have covered many different topics this afternoon, but there is one overriding theme that

unites them all: our ongoing effort as a court system to rethink how to make the legal process

fairer, more efficient, and more effective in solving the problems of the people who come before

us. "Human progress is neither automatic nor inevitable," Dr. Martin Luther King once

said. "Every step toward the goal of justice requires . . . the tireless exertions and passionate concern of dedicated individuals."9 If we are willing to focus less on how we have always done

our work, and more on how we can best provide justice and lighten the burdens of those who come to our courts, if we are willing to listen, to learn, to collaborate, to innovate, to evaluate, and to adapt, we can make the highest and best use of the many tireless, passionate, and dedicated individuals in our judiciary who are so committed to serving the people of this

Commonwealth.

I now yield the podium to two of those tireless, passionate, and dedicated individuals, first, Chief Justice Paula Carey, and then Court Administrator Jon Williams.

225 1 Data Brief: Opioid1-Related Overdose Deaths Among Massachusetts Residents, Massachusetts Department of Public Health, August 2017, https://www.mass.gov/files/documents/2017/08/31/data-brief-overdose-deaths-aug- 2017.pdf.

2 Hon. Edward F. Hennessey, The State of the Judiciary, 65 Mass. L. Rev. 104, 109 (May-June 1980).

3 Justice Reinvestment in Massachusetts: Third Presentation, Council of State Governments Justice Center (July 12, 2016) at 24, https://csgjusticecenter.org/jr/massachusetts/publications/justice-reinvestment-in- massachusetts-third-presentation/.

4 Id. at 30.

5 Adrian Walker, The formerly incarcerated still struggle to find work, Boston Globe, Mar. 22, 2017, at https://www.bostonglobe.com/metro/2017/03/21/years-after-criminal-justice-reform-formerly-incarcerated-struggle- find-work/0UkQxfESAv7zGgnNO8TtuL/story.html.

6 No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System, Boston Bar Association Criminal Justice Reform Working Group, September 2017, at 2.

7 See G. L. c. 208, § 53.

8 See G. L. c. 119, §§ 24, 29.

9 Martin Luther King, Address at the Thirty-fourth Annual Convention of the National Bar Association, August 20, 1959, Milwaukee, WI, https://kinginstitute.stanford.edu/king-papers/documents/address-thirty-fourth-annual- convention-national-bar-association.

226 Chief Justice Paula M. Carey State of the Judiciary October 26, 2017

Good afternoon and welcome to the 2017 State of the Judiciary.

When I contemplate preparing remarks for an event like today, I always think about the Trial Court’s mission: "one mission: justice with dignity and speed." My focus today is on the justice and dignity, piece of what we do, collectively, as one Trial Court consisting of seven trial court departments, probation, security, facilities management, the office of court management and the executive office. In light of the national and local environment, I’d like to highlight the relation of this mission to our efforts on race, gender and implicit bias, cultural competency, poverty and criminal justice reform.

We come to our work as persons of all shapes, sizes and ethnicities. This year, thanks to an amazing initiative conceived by our Probation Department, we just celebrated the strength of our differences with our first Cultural Appreciation Day.

The Probation Department launched this effort under the leadership of Commissioner Ed Dolan who was greatly assisted in this event by Deputy Commissioner Lydia Todd, Regional Supervisor Pamerson Ifill, who by the way is a rock star, and the many Cultural Proficiency Champions in the Massachusetts Probation Service. They conceived of this Day and found ways to engage judges, clerks and employees in celebrations in over 80 court locations in Massachusetts.

A number of wonderful events were held across the state. Many centered on food, with people coming together to sample ethnic specialties prepared by and shared with colleagues and the public. Locally, at the Brooke Courthouse there was a book talk led by Probation Officer Rhonda Greene highlighting some of the insights she gleaned from the book, Hillbilly Elegy. She discussed how some of the concepts explored in the book could provide insight for Probation Officers’ work with probationers. Delicious dishes had been prepared with recipes from various homelands. At the Suffolk Superior Court a display of children’s artwork depicted

227 their pride of the United States and their ethnicity. That celebration also included poetry readings, Celtic step dancers, an African attire fashion show, as well as, a concert by the Boston Latin Choir. We had judges dancing in front of courthouses…what better way to celebrate what our courthouses are to the community than to have judges embracing local culture.

These events were a wonderful way to explore the diversity we have in the court system, both in the workforce, and among the people and the communities we serve. It was a true celebration of the differences that make all of us special.

One need only turn to the radio, TV or internet to know that issues of race and gender are front and center in our world, including in the Trial Court. As a system, the Trial Court has implemented a broad-based effort to address the issues of race and implicit bias that we know exist within our justice system. While we are making strides, we cannot escape the events on our national landscape. Make no mistake, these events affect our work and influence how court users view the court system.

Since 2015 our efforts in the area of race and implicit bias have been comprehensive and intentional. They include a revised judicial evaluation instrument that is still under evaluation; an all-court race and bias conference for judges, and multiple follow-up conferences, one directed at civil cases and a second dedicated to criminal matters, all focused on identifying and addressing issues of bias.

Each Trial Court Department has established a judicial race and implicit bias committee that meets regularly and has developed bench cards and implemented further follow-up efforts to combat and address race issues. In addition, separate clerks, probation and security committees exist to accomplish the same result. We have established a Trial Court steering committee that includes judges, clerks, probation and court security to oversee all efforts with the goal of changing Trial Court culture on diversity issues.

228 Just last week we brought together all who serve on these committees, including leaders of three pilot courts. The outcome of the gathering and the energy it produced was more than I could have imagined. We are the Trial Court. We deliver justice to all impartially, fairly and without regard to race and ethnicity. I think I speak for all who were there in saying that individually and collectively we left even more committed to having the hard conversations and to addressing issues of race and bias head on.

I recently saw a video of a powerful speech on race delivered by Lt. General Jay Silveria of the Air Force Academy. He had gathered over 4,000 cadets and employees after someone wrote racial slurs on message boards outside the dorm room of five students of color. At one point in his forceful speech he asked everyone in the audience to take out their phones and record him so that his message was clearly heard, understood, and remembered. He said “If you can’t treat all with dignity and respect, get out.”

Our hope is to build capacity so that our leaders and our employees can hold each other accountable in ensuring that our users have trust and confidence in our system and that all employees feel valued and are treated with respect and dignity.

Increasingly, we are seeing more people in our system who now live or grew up in extreme poverty. In order to truly treat people with respect and dignity we must consider each person as a comprehensive whole and consider how their life experiences cause them to be connected to our justice system.

Poverty creates legal problems that the middle class and wealthy individuals generally do not have. Challenges for people living in poverty in navigating our system include difficulty producing paperwork to prove their case and often an inability to read or comprehend written or oral court orders, decisions or agreements. They may also face more basic obstacles like lack of transportation and day care.

229 The question our system must ask is, ‘do those who live in poverty fare the same as middle class and wealthy individuals when contact with the justice system becomes necessary?’

The majority of persons living in poverty must navigate the justice system without legal assistance, especially in civil areas. The right to counsel in criminal cases is well established. However, in civil cases the right to counsel is limited and in fact the Legal Services Corporation, the largest funder of civil legal services, continues to fight for its existence. Our system was designed for lawyers. Substantive and procedural law is unfamiliar and difficult for any untrained individual.

Our documents are written at high levels of literacy. Efforts are underway in our state to put court forms in plain language, at a fifth grade level, but we have a long way to go to make our forms and procedures understandable for a critical mass of unrepresented litigants. Much of what I have spoken about relates directly or indirectly to the issues of criminal justice reform and access to justice. The Trial Court is firmly committed to criminal justice reform, not only in the form of the Governor’s bill but also in more expansive changes to our bail statute. The Trial Court supports efforts to decrease reliance on cash bail, systematize the factors courts consider when deciding whether to release someone pending trial, and require the least restrictive bail conditions. The Trial Court also applauds the focus on ensuring that individuals detained prior to trial have the process appropriate to that outcome. The Trial Court welcomes the expansion of Community Corrections Centers that the Governor’s bill includes. The ability to use these resource-rich centers for pretrial services will enable us to better serve the people appearing in our criminal courts.

Our work in this area in the last year has provided a wonderful opportunity to collaborate with the executive and legislative branches in ways that are unprecedented. I am both proud and grateful for this partnership. Chief Justice Gants discussed overall reform in his remarks so I will not repeat his always eloquent points. But I do want to touch upon one aspect of reform that is of great interest to the Trial Court and that is the area of Emerging Adults, ages 18-24.

230

We learned from our work with the Council of State Governments that young adults aged 18-24 in Massachusetts account for a disproportionately high percentage of arrests and prison admissions. Statistics indicate about half of previously incarcerated young adults return to prison within three years following release. There is much debate about when young people fully mature and have full control of their behavior. Is it 18?, 21?, 24? or later. Research continues to develop. When is their brain maturation complete? Having a justice system that appropriately responds to criminal behavior and helps young adults rebuild their lives has the potential to reduce future criminal activity and consequently the number of future victims.

The Trial Court is committed to getting this work right. We have examined specialty court sessions, such as those occurring in San Francisco, and restorative justice models in Buffalo. We have learned much from our review. Recognizing the unique needs in Massachusetts, our model will be one that focuses specifically on high risk / high need emerging adults.

In connection with the Council of State Governments’ work, state funds have been allocated for the Trial Court to begin its first-ever Massachusetts Young Adult Pilot Probation Program. The goal of this pilot program is to develop a new approach for working with probation-involved young adults (ages 18-24) that will result in better outcomes and cost efficiency for a targeted population that currently has the highest recidivism in the state. Moreover, we intend that this program intervention, grounded in evidence-based research, will serve as a model for innovative service delivery, data sharing and procurement design that could be scaled in Massachusetts and beyond.

Given conversations around criminal justice policy reform and the focus on new programming for young adults due to recent brain research development, we believe that this particular program can also represent a significant contribution to the overall field of young adult justice. We are also developing education modules for all judges and Probation to provide cutting edge research on how to approach these “emerging” adults in a way that will preserve public safety and improve outcomes.

231

Further, we will be exploring our own version to an Emerging Adult Court Session with strong judicial involvement devoted to high risk / high need individuals.

I look forward to this “State of the Judiciary” every year. Those of you who know me, know I love to talk about the Trial Court – the judges, clerks and incredible people who work so hard to make a difference every day – the people that make me so proud to be a leader in this organization – and to talk about my passion – the work of delivering justice. But the “State of the Judiciary” always gives me the opportunity to reflect upon the Bar and all the ways that you partner with us to help in that delivery of justice with dignity.

It is only with all of you – DA’s, CPCS, AG, the MBA, BBA, all the local and affinity Bar associations – with your individual representation, the programs you sponsor, staff and fund, and your advocacy for the Trial Court, that we succeed. We share a background of legal education, training and advocacy that allows us to do this important work. Please know that I never take the quality of representation or the good will of Massachusetts Bar for granted.

In closing, I would like to thank Chief Justice Ralph Gants and the SJC for their incredible support, my Partner in Justice Jon Williams for his commitment to Massachusetts and for the knowledge and experience he brings to us, and my fellow Chief Justices, individually and collectively. You are the best I could ever hope for. You each do an amazing job of representing and advocating for your department but when the time comes to consider the collective needs of the system, you are able to change hats and do that equally as well – so, thank you.

Thank you all for your support and collaboration. These are challenging times but I know that we will continue to make progress in Massachusetts given the strong partnerships represented here today.

232 State of the Judiciary Court Administrator Jonathan Williams Address to the Massachusetts Bar Association October 26, 2017

This State of the Judiciary Address is my first opportunity to speak formally to the Massachusetts Bar Association, and through you to the people of the Commonwealth to whom we are accountable. Thank you for all that you do professionally, whether counseling your clients or volunteer efforts supporting and maintaining the finest justice system in the world.

You all know that I have come from a legal and governmental career in North Carolina. Two hundred years ago a young man wrote to a North Carolina judge that: I would certainly prefer greatly being an able advocate at the Bar, than being distinguished in any other avocation and shall never cease to think that the brightest ornaments of the Bar are the brightest ornaments of Human Nature.i

I wholeheartedly agree. I have always found the company of lawyers to provide wit and wisdom in everyday life and in meeting most of life’s larger challenges.

My appointment as Court Administrator by the Supreme Judicial Court is a singular professional honor. It is also a pleasure to work with Chief Justice Gants and the members of the Court. And each day it is a privilege to work alongside Chief Justice of the Trial Court Paula Carey. She is one of the most dynamic and engaged court leaders in the country. As we travel the state, I see how she represents the energy and high ideals of court leaders statewide. Her particular zeal and her encouragement of others brings out the best in everyone. She is a great colleague and partner.

One reason I came to Massachusetts is its unique court governance. Six years ago, statutes were amended and the Executive Office of the Trial Court was created. Harry Spence was appointed as the first Court Administrator to work as an equal with the Chief Justice. It is now my job to build on a strong foundation to prove that the success of this model can endure.

233 Chief Justice Gants today challenged us to continue to innovate: “to rethink how to make the legal process fairer, more efficient, and more effective in solving the problems of the people who come before us.”

Chief Justice Carey explained more about how we are living our mission of delivering justice with dignity and speed – by addressing issues of race and bias in the courts, by mitigating obstacles that accompany poverty, and becoming more focused on stronger intervention with young adults.

Let me outline what is happening on the administrative front to enable us to meet these challenges. Today, I’ll report to you on our workforce, our capital facilities plan, and our technology.

People are the most important part of any institution; and facing a judge is only one part of a court experience. The people who work as Court Officers both greet everyone and must be prepared for anything. Staff at the counters must be knowledgeable and efficient. Probation Officers develop relationships with offenders to help build or restore productive lives. Our facilities staffs both maintain notable historic structures and operate state of the art energy conservation systems. Court interpreters provide assistance in dozens of languages. We have many needs and many careers.

As community and court needs evolve, we must invest in recruitment and retention of talented new employees, as well as in ongoing training for our existing workforce. We have doubled the number of court staff receiving training over the past four years. We have established a nationally-certified training academy for court security. We have working groups assessing and planning how technology will reshape our job requirements. In 2018, we will launch a health and wellness initiative.

Through employment diversity efforts we have reached rough parity in the race, ethnicity and gender composition of our workforce with that of the Commonwealth. We recognize disparities remain between certain job groups and titles, and we are working to address those. You can expect us to do more to modernize our recruiting, hiring and promotional processes.

The workforce we seek is a diverse one that values merit-based hiring and promotion, seeks continuing education, embraces innovation, and strives to live up to our ideals of justice each day.

234 While the workforce is our daily concern, over the next generation our capital facilities plan is designed to provide and protect the courts we need for the future. The Trial Court and the state’s Division of Capital Asset Management in 2015 began a comprehensive, data-driven dive into the physical assets and needs of our court system. We own or lease more than 100 facilities statewide and the majority are more than 50 years old.

But in too many places maintenance and upkeep have gone unmet, including fire safety systems, ADA compliance, and even basic heating and air conditioning. All told the assessment tallied up to $2 billion in accumulated deferred maintenance needs.

In some cases the buildings are just not financially worth maintaining as courts, typically because the volume of work has far outgrown the facility. On that basis and with many other deficiencies the Quincy District Court rated as the highest priority for replacement.

We also are working to optimize the number of courthouses. In some places we are consolidating multiple court departments into a single building that offers not only a much better working and service environment but lower operating costs to provide security, upkeep and readiness for technology. It makes it possible to have court service centers as well.

On that basis, the next regional justice center will include courts in Dedham with Quincy. Typically we expect savings of $1.5 million annually in basic operating costs by working in one building instead of four. Often the buildings we expect to combine are within sight of one another. Our newest courthouses have innovative energy efficiency systems with LEED certification, and those investments will pay off year after year in lower energy costs. Altogether the assessment for new construction statewide totals another $1 billion.

Our capital plan breaks these projects into phases over the next 20 years. In fact, the bond bill for the first phase was favorably voted out of committee this week. We are very fortunate to have supportive partners in both the legislative and executive branches to move this work forward.

Let’s move now to technology. Technology has transformed the practice of law and administration of justice in my lifetime. Data that used to be just words on a physical page in a court file can now be captured, moved, stored and distributed electronically, and verified as secure and uncorrupted.

235

In software development and other fields there is an important concept called the “user experience.” That means paying attention to how people interact with a system -- whether it is easy to navigate and find what you need. “User experience” began to influence how government works many years ago, but courts have been a bit slow to embrace it fully. That’s why it caught my eye in the Massachusetts Trial Court Strategic Plan that User Experience would be a critical domain. It affects how we see access to interpreters and helping self represented litigants, but it also means thinking about how court technology can better serve the public.

We recently conducted a survey of people using Massachusetts courts. More than 1,500 people at 25 different court sites were asked about their experience. We found that 22% of those coming to court were attorneys, then of course there are witnesses and jurors and so on. But 11% were individuals there just to file papers and another 4% were just there to make payments. So we ask do they all have to come?

There are literally millions of trips to courthouses each year, and technology gives us new ways to transact traditional business. For example, in the first six months of this year we hosted close to 8,000 video events. The majority were arraignments, but did you know that we have held hearings on orders of protection, probation hearings, and hosted attorneys arguing motions from their offices, all transmitted to screens in courtrooms?

As leaders of the bar, you know we have committed to e-filing for civil matters. We have accepted more than 1,000 new cases this year. You probably don’t know that 25,000 electronic applications for criminal complaints were filed from police departments this year. In the next year we will pilot an application specially designed for judges to access files and work from the bench electronically. They will use the same technology in their lobbies and when assigned to other sites. This means the ability to access their files from any session wherever they happen to be.

And for the public we are about to turn on a feature to make payments online, including court costs, probation fees, restitution and other matters.

Of 429 courtrooms in the Commonwealth almost 300 are now equipped with the latest audio recording technology. Not only does this improve sound quality, but the recordings are stored centrally and available for streaming playback online.

236 Most exciting for practicing lawyers and appellate judges is that this system allows us to shorten the time for producing most transcripts from 90 days to 30 days.

We are excited that technology will save court users valuable time so that they can come to the courthouse only when their testimony is needed or they need to meet with staff on an estate or other matter where a face-to-face meeting is the best way, and not the only way. That survey quantified what we all might have guessed: 36% of court users missed work or school for court, and 11% had to arrange care for a family member to come to court. We want to these users to have more options at less personal and financial cost.

These are just some of the ways we are meeting Chief Justice Gants’ call to rethink the ways we deliver justice.

Before I conclude let me honor our predecessors who founded and led the modern court system. Until the 1978 reorganization there was no state trial court system. There were 95 county-based courts operating with near independence and famous for delay and inefficiency. Chief Justice Arthur Mason was appointed to bring into existence the statewide court system we now take for granted. Chief Justice Mason was known for his modesty, kindness, and thoughtfulness, and no challenge we face today is greater than those he met and mastered. As you may know, Chief Justice Mason passed away last week at the age of 95. We remain grateful and indebted that he devoted 35 of those years to public service, 14 of those as the first Chief Justice of the Trial Court.

In my first six months I have visited almost one-fourth of the courthouses in the Commonwealth. My observation as the newest member of the team before you is that the State of the Judiciary is strong. The work of our judges, clerks, court officers, probation, facilities and other support staff has never been more professional than today.

I appreciate the opportunity to appear before you. And I look forward to working with you as we continue our progress.

i The Papers of Thomas Ruffin, Volume 1, p. 440 (J. G. de Roulhac Hamilton, ed., North Carolina Historical Commission 1918)

237

238 239

240 Standing Order 1-15. Participation in Juror Voir Dire by..., MA R SUPER CT...

Massachusetts General Laws Annotated Standing Orders of the Superior Court

Superior Court Order 1-15

Standing Order 1-15. Participation in Juror Voir Dire by Attorneys and Self-Represented Parties

Currentness

(Applicable to All Counties)

A. Purpose.

The purpose of this Standing Order is to provide an interim procedure for the implementation of St. 2014, c. 254, § 2, pending completion of the work of the Supreme Judicial Court Committee on Juror Voir Dire. The Superior Court anticipates that this Standing Order may be superseded by, or may be modified in response to, such rules, protocols, or guidelines as the Supreme Judicial Court may hereafter adopt or approve, as well as in response to experience in the implementation of this Standing Order, including experience with the pilot project referred to in paragraph C(9) hereof. This Standing Order is adopted pursuant to Trial Court Rule V; shall take effect on February 2, 2015, coincident with the effective date of St. 2014, c. 254, § 2; and shall remain in effect until such time as it may be superseded or modified.

B. Preamble.

In enacting St. 2014, c. 254, § 2, the Legislature recognized and preserved the discretion of the trial judge to lead and supervise the process of juror voir dire, including oral examination of prospective jurors by attorneys and self-represented parties in the exercise of the right granted by the statute. The Superior Court recognizes that trial judges may properly exercise discretion to employ procedures for the examination of prospective jurors by attorneys and self-represented parties that may differ from those set forth herein, as well as to use written juror questionnaires where they deem appropriate in addition to the Confidential Juror Questionnaire required by G. L. c. 234A, § 22 (hereinafter, the “statutory Confidential Juror Questionnaire”). This Standing Order fully preserves the discretionary authority of the trial judge with respect to the examination and selection of jurors in each case, and provides a standard procedure that will apply in each civil and criminal case unless otherwise ordered by the trial judge, while permitting attorneys and self-represented parties a fair opportunity to participate in voir dire so as to identify inappropriate bias.

C. Procedure:

1. Any attorney or self-represented party who seeks to examine the prospective jurors shall serve and file a motion requesting leave to do so. In civil cases such motion shall follow the procedure provided by Superior Court Rule 9A, and shall be filed with the Court, along with any opposition or other response received, not later than the earlier of (a) the final trial conference if such a conference is scheduled in the case, or (b) fourteen days prior to the date scheduled for trial. In criminal cases the motion shall be served on all parties at least one week before filing, and the motion and any opposition or other response shall be filed with the Court not later than two business days prior to the scheduled date of the final pretrial conference, or, in the event that no final pretrial conference is scheduled, five business days before the scheduled trial date.

2. The motion shall identify generally the topics of the questions the moving party proposes to ask the prospective jurors. Topics identified shall be interpreted to include reasonable follow-up questions. Any opposition or response to any such motion may address the proposed topics. The trial judge may, in the exercise of discretion, and after notice to the parties, require attorneys and self-represented parties to submit the specific language of the proposed questions for pre-approval. The motion and any responsive filing shall also include any proposed language for brief preliminary instructions on principles of law to be given pursuant to paragraph 5(b) hereof.

3. The trial judge shall approve or disapprove the topics of questions proposed, or, if the trial judge requires pre-approval of the specific language of the proposed questions, shall approve or disapprove each proposed question. In doing so the judge shall give due regard to the goals of: (a) selecting jurors who can and will decide the case based on solely the evidence and the law, fairly and impartially to all parties, without in the process exposing jurors to any extraneous matter that would undermine their impartiality; (b) conducting the selection process with reasonable expedition, in proportion to the nature and seriousness of the case and the anticipated length of the trial, and with due regard for the needs of other sessions that draw on the same jury pool for access to potential jurors; and (c) respecting the dignity and privacy of each potential juror.

4. (a) Questions that should generally be approved are:

(1) those seeking factual information about the prospective juror's background and experience pertinent to the issues expected to arise in the case, along with reasonable follow-up questions regarding whether and how such background or experiences might influence the juror in the case, provided that questions that would elicit sensitive personal information about a juror, or that specifically reference information provided in a juror's statutory Confidential Juror Questionnaire, shall be permitted only outside the presence or hearing of other jurors, so as to preserve the confidentiality required by G. L. c. 234A, s. 23.

(2) those regarding preconceptions or biases relating to the identity of the parties or the nature of the claims or issues expected to arise in the case.

(3) those inquiring about the prospective jurors' willingness and ability to accept and apply pertinent legal principles as instructed, after consultation with the judge regarding the principles of law on which the judge will instruct the jury.

(b) Questions that should generally be disapproved are those:

(1) that duplicate the questions that appear on the statutory Confidential Juror Questionnaire, or any other written juror questionnaire used in the case, but questions seeking further detail regarding information provided on a juror's questionnaire, or completion of any uncompleted answers on the questionnaire, should generally be approved, subject to the limitation stated in paragraph (a)(1) hereof;

(2) regarding the prospective juror's political views, voting patterns, party preferences, religious beliefs or affiliation, reading or viewing habits, patterns of charitable giving, opinions on matters of public policy, hobbies or recreational activities, or similar matters, or regarding insurance, except insofar as such matters may be relevant to issues expected to arise, or may affect the juror's impartiality in the case;

(3) regarding the outcome of any trial in which the prospective juror has previously served as a juror, or deliberations in or the prospective juror's vote in such trial;

(4) purporting to instruct jurors on the law;

(5) that make arguments on any issue of fact or law; that tend to indoctrinate or persuade; that encourage the juror to identify with a party, victim, witness, attorney, or other person or entity, or to send a message; or that encourage the juror to prejudge any issue in the case, to make a commitment to support a particular result, or to do anything other than remain impartial and follow the Court's instructions.

(6) that require a juror to guess or speculate about facts or law.

(7) that would tend to embarrass or offend jurors or unduly invade jurors' privacy.

5. Prior to any questioning by attorneys or self-represented parties, the trial judge shall:

(a) provide the venire with a brief description of the case, including the nature of the facts alleged and of the claims or charges, including the date and location of the pertinent alleged event(s), and the identity of persons or entities significantly involved;

(b) provide the venire with brief, preliminary instructions on significant legal principles pertinent to the case. Such instructions should include a brief recitation of: the burden and standard of proof; the elements of at least the primary civil claim or at least the most serious criminal charge, and, if appropriate to the case and requested by counsel or a self- represented party, the elements of any affirmative defense that will be presented to the jury; and, in criminal cases, the defendant's right not to testify.

(c) explain to the venire the empanelment process, including, in cases where attorneys and/or self-represented parties will pose questions, the nature and topics of the questions that will be posed, and that any juror who finds either a particular question or the process of questioning by attorneys or self-represented parties intrusive on the juror's privacy may request to be permitted to decline to answer and/or that steps be taken to protect the privacy of any information disclosed. Upon request, the judge may permit each party to make a brief introductory statement to the venire limited to explaining the process and purpose of the questioning of jurors by attorneys or self-represented parties.

(d) ask all questions required by statute or case law, and any additional questions the judge deems appropriate in light of the nature of the case and the issues expected to be raised. The judge may ask questions of the venire as a group, but should conduct at least part of the questioning of each prospective juror individually outside the presence or hearing of other jurors.

(e) as to each prospective juror questioned individually, excuse the juror if the judge determines that service would pose a hardship, or if the judge has doubt as to the juror's impartiality; otherwise find the juror indifferent and able to serve.

6. After the judge has found an individual juror indifferent and able to serve, the judge shall permit questioning by attorneys or self-represented litigants if and to the extent that the judge has previously approved such questioning upon motion submitted in the manner provided herein. Such questioning shall begin with the party having the burden of proof.

(a) Except as provided in paragraphs C(6)(b) and C(9) hereof, the judge may require that such questioning be conducted of each prospective juror individually, outside the presence or hearing of other jurors. Parties may assert challenges for cause based on the juror's responses to questions posed by attorneys or self-represented parties, notwithstanding that the judge has previously found the juror indifferent based on the judge's questioning and information provided in the statutory Confidential Juror Questionnaire. If the juror is not excused for cause upon such challenge, the judge may require the exercise of any peremptory challenge at that time, beginning with the party who has the burden of proof and, in civil cases, the judge may alternate sides thereafter. Alternatively, the judge may seat the juror subject to the parties' later exercise of peremptory challenges.

(b) Upon request of one or both parties, the trial judge may permit counsel or self-represented parties to question jurors as a group, in a so-called “panel voir dire” procedure. Such questioning shall occur of those jurors whom the judge has already questioned individually and found indifferent and able to serve, after the judge has so found with respect to at least the number of jurors that will be seated for trial. If questioning occurs in this form, the judge shall not permit any questions that would elicit sensitive personal information about an individual juror, or that would specifically reference information provided in a juror's statutory Confidential Juror Questionnaire. Jurors to whom questions are addressed, or who respond to questions, shall be identified on the record by juror number only. After completion of questioning the parties may assert challenges for cause based on responses to questions posed by attorneys or self-represented parties, although the judge has previously found the challenged juror indifferent. The judge shall require that such challenges for cause, as well as peremptory challenges, be asserted outside the hearing of other jurors. Upon any challenge for cause, the judge may allow opposing counsel further opportunity to question the juror.

7. Whether questioning of jurors by attorneys or self-represented parties occurs individually or in a group, any party may object to a question posed by another party by stating “objection,” without elaboration or argument. The judge may rule on the objection in the presence of the juror or jurors, or may hear argument and rule on the objection outside the presence or hearing of the juror or jurors.

8. The trial judge may set a reasonable time limit for questioning of prospective jurors by attorneys or self-represented parties, giving due regard to (1) the objective of identification of inappropriate bias in fairness to all parties; (2) the interests of the public and of the parties in reasonable expedition, in proportion to the nature and seriousness of the case and the length of the anticipated evidence, and (3) the needs of cases scheduled in other sessions drawing on the same jury pool for access to prospective jurors.

9. The Court will establish a pilot project, in which judges who volunteer to do so will conduct so-called “panel voir dire,” according to a consistent procedure to be determined and described in a separate document. During the course of the pilot project, the Court will compile data regarding identified measures. Upon completion of the pilot project, the Court will issue a public report of such data.

Credits Adopted December 5, 2014, effective February 2, 2015.

Superior Court Order 1-15, MA R SUPER CT Order 1-15 Current with amendments received through October 15, 2015.

246 SECTION 2 Massachusetts Rules of Professional Conduct and How They Differ from the Model Rules

I. Overview

II. “The Legal Ethics Nightmare of Increase Adams, Esq.” (Introduction)

III. Hypothetical One: “Goony Universe” Facts:

1. Massachusetts firm associate Ray Sipsa, a Massachusetts and Flor- ida bar member, and junior partner Lois Bidder, who is a real estate lawyer, travel to Florida to close a deal to represent Goony Universe in its project involving surreptitiously purchasing land in Greenville, Mass. for the construction of a theme park.

2. Ray, a negotiation specialist, has been told by his partners to “Do or say whatever you have to, just so you get the representation.” To further hone his skills as a negotiator, Ray plans to keep a small recording device in his pocket so he can review the session later and critique his performance.

247 3. The CEO of Goony Universe, saying that he does not approve of female attorneys (and that Lois is so attractive that he couldn’t “trust himself” to work with her), asks Ray to handle the representation.

4. Ray protests that he is a novice in the real estate field, and would have to charge for the time it would take him to become sufficiently competent. The CEO agrees, and the deal is sealed with a handshake.

Question: Can Ray and Lois ethically accede to the requirement that no female attorney bill time on the project? 1. Of course. This is the client’s prerogative. 2. No. Ray is not competent for the task. 3. Yes. A lawyer does not endorse a client’s methods or beliefs by representing him. 4. No. This is prohibited by the Rules of Professional conduct. 5. They can, but they shouldn’t.

Issues:

• Ethically questionable retainer provisions required by potential clients • Fee agreements • Reasonable fees • Competence • Discrimination • Assisting a client in unethical or illegal conduct • Surreptitious taping for personal use. • New ABA Rule 8.4g

Massachusetts Rules of Professional Conduct: 1.1, 1.2, 1.3, 1.5, 5.1, 5.2, 8.4

248 IV. Hypothetical Two: “Hedda Cabbage”

Facts:

1. Before associate Ray Sipsa begins purchasing any Greenfield real estate for Gooney, but after the representation has commenced, the General Counsel of a long-time corporate client of the firm, during a social engagement, informs the firm’s senior partner that its board has decided to buy up land in the vicinity of the Massachusetts Hamptons or nearby Greenfield and to build a new theme park.

2. To complete the final land purchase from an elderly female owner (who insists on representing herself in negotiations), Ray flirts, en- dears himself to her and tells her that he “would never take advantage of her.”

3. She agrees to the sale, and also offers to sell an adjoining piece of land outside the theme park construction territory. Ray realizes that the parcel will be worth a fortune once Goony Universe announces the project.

4. Ray calls the firm partner, and asks what he should do regarding the proffered sale. He is told to complete the sale for the property sought for the client, and then to arrange to purchase the property for the firm once the representation is complete.

249 Question: Can the law firm ethically purchase the adjoining parcel after the representation ends? 1. Not without first alerting the client. 2. Not without getting permission from the client. 3. Sure: Florida rules govern, and Florida would allow it. 4. It’s permitted by the Rules, but it’s still unethical. 5. Ray should have said nothing, and purchased the land for himself.

Issues:

• Negotiation • Honesty, Deceit • Confidences • Loyalty • Information learned in the course of representation. • Supervisory and subordinate attorneys • Conflicts of interest • Definition of practice of law • Thrust-upon conflicts • Compliance vs. Ethics

Massachusetts Rules of Professional Conduct:

1.2, 1.3, 1.4, 1.6, 1.7, 1.8, 1.9, 1.10, 2.1, 4.1, 4.2, 5.1, 5.2, 8.4

[15-minute Break]

250 V. Hypothetical Three: “I Love Luca”

Facts:

1. Attorney Barb Cratchit is defending hit man Luca Brahmin, who is accused of killing a client of Adams & Cabot. Luca waives the conflict.

2. A TV show proposes to have both attorney and client wired and filmed during the case for a documentary. Barb explains to Luca that she will remove both mics and dismiss the film crew whenever confidential material is being covered in their discussions, or if Luca is uncomfortable with a discussion on camera.

3. Immediately before trial begins, Barb approaches the prosecutor in the case and references, as if by accident, a recent personal tragedy for the DA involving the death of a child. The tactic successfully upsets him, leading to a shaky opening statement.

4. During the course of the trial, the jailed hit man tries to use Barb Cratchit to deliver a letter to a confederate setting up perjured testimony to lay the foundation of an alibi. The suborning letter is sealed inside an envelope addressed to Barb to avoid prison inspection, along with a note to her requesting that she mail it. The lawyer opens the sealed letter, revealing the plot, then immediately withdraws, disclos- ing the contents of the letter to the judge without requesting that it be under seal.

251 Question: What ethics rules, if any, has Barb Cratchit violated? 1. She had an unwaivable conflict that she let her client waive. 2. Her treatment of the mourning prosecutor was disgusting and unethical. 3. Her handling of the letter was unethical. 4. All of the above. 5. I have another answer.

Issues:

• Conflicts of interest • Confidentiality • Communication • Loyalty • Client perjury • Withdrawal • Informed Waiver • Crime-fraud exception

Massachusetts Rules of Professional Conduct:

1.1, 1.2, 1.3, 1.4, 1.6, 1.7, 1.9, 1.10, 2.1, 3.3, 3.4, 8.4

252 VI. Hypothetical Four: “Dinner of Doom”

Facts:

1. Attorney Fred Fezziwig is having a romantic dinner with Donna De Dedd, his girlfriend and the general counsel of a Massachusetts- headquartered company with operations all over the country. He started representing the company on copyright and trademark issues when he was living and practicing in New Jersey. He was hired by Donna, and he moved with her to Boston when she was transferred.

2. He now teaches at a local law school, but never got his Massachu- setts law license. Nonetheless, he frequently takes on appellate cases in Federal Court and conducts all his legal work, such as it is, from his faculty office. The sign on the door says, “Professor Fred Fezziwig, Attorney at Law.”

3. During their dinner, Donna tells Fred that the company is “pre- texting” to acquire information in its investigation about leaks from the Board. She has answered the CEO’s questions about legality by saying that there are no cases she can find where anyone was indicted or fined for such tactics, but she wonders if she should do more.

4. She asks Fred his opinion. Fred tells her that she needs to go “up the ladder” with her concerns, but she refuses, saying that the Found- er/CEO is behind the operation, and the Board is the target.

253 Question: What is Fred’s most ethical course? 1. He needs to go “up the ladder” himself, and if necessary, report to the stockholders. 2. Nothing. This doesn’t involve him. 3. He needs to tell Donna that she has to report the conduct, and he will report her for misconduct if she does not. 4. Nothing. There is nothing illegal that triggers an obligation. 5. He can try going “up the ladder,” but he cannot report “out” if it doesn’t work. 6. Something else.

Other issues to be discussed:

• Unauthorized practice of law • Conflicts of interest • Conflicts of law • Organizational representations • Supervision of non lawyer assistants • Confidentiality • Communication • Withdrawal • Threatening attorney misconduct • Reporting attorney misconduct • Potential clients • Sex with clients

Massachusetts Rules of Professional Conduct:

1.1, 1.2, 1.3, 1.4, 1.6, 1.7, 1.8, 1.13, 1.16, 1.18, 2.1, 5.3, 5.5, 8.3, 8.4

254

VII. Hypothetical Five: “Techno-Hell”

1. Increase sees himself in the future, working in a law office filled with electronic devices that he neither comprehends then or now.

2. He receives endorsements on LinkedIn®, is active on Twitter, and talks about a case with Siri on his iPhone. ®

3. He uses Skype® to speak with opposing counsel (who can see confidential documents on Increase’s desk.) He sends an e-mail about a client’s legal affairs to a client’s workplace account, and uses Google Docs to send some case documents.

4. He chats about another case using Facebook® messaging with a client in an airport, and investigates potential jurors using Facebook®.

5. He receives an email from opposing counsel with a document that that includes metadata that counsel neglected to remove, and uses metadata mining software to find and read it.

6. Increase places a client’s file, including uploaded interviews and privileged documents, on an ultra-small flash storage device, and slips it in his wallet, and buys a high tech auditory translator that will allow him to understand anything opposing counsel in an upcoming negotiation says or hears from his client in the client’s native tongue.

255

Question: Which of the following uses or misuses of technology by Increase do not violate the Massachusetts Rules? 1. Using a hidden translator 2. Surreptitiously checking a juror’s Facebook site 3. Using metadata mining software 4. Discussing cases with Siri 5. They all violate the Rules

Other issues:

• Competence • Diligence • E-mail • Legal technology • Social networking • Inadvertent transmission of confidential information • Advertising • Protecting client confidences • Misrepresentation • Zealous representation • Communication • Safekeeping client property • Professionalism

Massachusetts Rules of Professional Conduct:

1.1, 1.2, 1.3, 1.4, 1.6, 1.15, 2.1, 7.1, 7.2, 7.3, 7.4, 8.4

256

SECTION 3 Managing the Attorney-Client Relationship, Including Social Media Do’s and Don’ts

Materials provided by Christa A. Arcos, Esq. of Stoneham—

A New Ethics Rule: Mass. R. Prof. C. 1.15A, Effective September 1, 2018 ....261

B Checklist When Terminating/Withdrawing from Representation and File Transfer/Retention (Arcos, July 2018) ...... 269

C Checklist for Conflicts (Arcos, July 2018) ...... 271

D Multiple Party Representation and the New Conflict Rules: What You Need to Know ...... 273

E Sample Potential Conflict Disclosure Letter—Civil Litigation (Arcos, 2017) ...... 274

F Sample Potential Conflict Disclosure Letter—Joint Estate Plan (Arcos, 2017) ...... 278

G Revisions to the Rules of Professional Conduct: What You Need to Know ...... 281

H CJE Opinion No. 2018-03 (Disclosure of Former Facebook Friendship) .....282

I CJE Opinion No. 2016-01 (Facebook: Using Social Networking Site) ...... 284

J CJE Opinion No. 2016-08 (LinkedIn: Using Social Networking Site) ...... 289

K CJE Opinion No. 2016-09 (Twitter: Using Social Networking Site) ...... 291

L ABA Opinions 483 (October 17, 2018), 481 (April 17, 2018) and 480 (March 6, 2018) ...... 296

M What’s in a Statement? Truth and Accuracy in Preparing and Executing Sworn Documents ...... 297

N Wearing Two Hats: Dual Practices and Ancillary Businesses ...... 300

O Smaland Beach Association, Inc. v. Genova, 461 Mass. 214 (2012) ...... 305

P Getting Ahead in the Cloud ...... 318

257

Q MBA Ethics Opinion 12-03 (Using Cloud Storage—Google Docs) ...... 323 (published in 2012, prior to the revision of the Massachusetts Rules of Professional Conduct, which became effective on July 1, 2015.)

R Revised Massachusetts Rules of Professional Conduct ...... 327 • SJC Announcement of Revised Rules ...... 328 • Report of the Standing Advisory Committee ...... 330

Materials provided by James S. Bolan, Esq., Brecher, Wyner, Simons, Fox & Bolan LLP, Newton Centre—

S Prospective Client ...... 335

T Documentation ...... 336

U Telephone Procedures ...... 337

V Confidentiality ...... 338

W Conflict Checks ...... 339

X Outline of Massachusetts Legal Malpractice Law ...... 347

Y 24 Top Ten Rules of the Road ...... 348

Z I Never “Met A Data” I Didn’t Like...... 351

A2 Discipline and Malpractice Standards ... When Rules Catch Up with Reality (“World Series” Edition) ...... 358

B2 Ethics, Risk and Malpractice Avoidance (excerpts) ...... 360

C2 Loss Prevention/Malpractice Prevention/Bar Complaint— Review, Response, and Audit (excerpts) ...... 388

D2 You Mail, I Mail, We All Send Email ...... 397

E2 “In-House” and “Out-House” ...... 400

F2 Fee Agreements and Related Administrative Documents ...... 403

258

Materials provided by Scott D. Burke, Esq., Morrison Mahoney LLP, Boston—

G2 MBA Ethics Opinion 2014-5 (“Friending” an Unrepresented Adversary)...... 431

H2 Sample Engagement Letter/Agreement ...... 433

I2 Sample Non-Engagement Letter ...... 440

Note: Some of the checklists, documents, and forms compiled herein were created prior to July 2015. Those documents are intended as samples for your reference only. Please review the Massachusetts Rules of Professional Conduct, as revised effective July 1, 2015, for the most current status of the rules.

259

260 Section 3A

New Ethics Rule: Mass. R. Prof. C. 1.15A, Effective September 1, 2018

261 262

263 Mass. R. Prof. C. 1.15A: CLIENT FILES

(a) For purposes of this Rule, the client’s file consists of the following physical and electronically stored materials:

(1) all papers, documents, and other materials, whether in physical or electronic form, that the client supplied to the lawyer;

(2) all correspondence relating to the matter, whether in physical or electronic form;

(3) all pleadings and other papers filed with or by the court or served by or upon any party relevant to the client’s claims or defenses;

(4) all investigatory or discovery documents, including but not limited to medical records, photographs, tapes, disks, investigative reports, expert reports, depositions, and demon- strative evidence;

(5) all intrinsically valuable documents of the client; and

(6) copies of the lawyer's work product.

Paragraph (a) does not impose an obligation to preserve documents that a lawyer following cus- tomary practices would not normally preserve in the client’s file. For purposes of subparagraph (5), documents are intrinsically valuable where they constitute trust property as defined in Rule 1.15 or have legal, operative, personal, historical or other significance in themselves, including wills, trusts and other executed estate planning documents, deeds, securities, negotiable instruments, and official corporate or other records. For purposes of this Rule, work product shall consist of documents and tangible things prepared in the course of the representation of the client by the lawyer or at the lawyer's direction by the lawyer’s employee, agent, or consultant, and not described in subparagraphs (2), (3), (4) or (5) above. Examples of work product include without limitation legal research, closing binders, records of witness interviews, and reports of negotiations.

(b) A lawyer must make the client’s file available to a client or former client within a reasonable time following the client's or former client’s request for his or her file, provided however, that:

(1) the lawyer may at the lawyer’s own expense retain copies of documents turned over to the client;

(2) the client may be required to pay (i) any copying charges for copying the material described in subparagraphs (a)(3) and (a)(6), consistent with the lawyer's actual copying cost, unless the client has already paid for such material, and (ii) the lawyer’s actual cost for the delivery of the file;

264 (3) the lawyer is not required to turn over to the client investigatory or discovery documents for which the client is obligated to pay under the fee agreement but has not paid; and

(4) unless the lawyer and the client have entered into a contingent fee agreement, the lawyer is only required to turn over copies of the lawyer's work product for which the client has paid.

Notwithstanding anything in this paragraph (b) to the contrary, a lawyer may not refuse, on grounds of nonpayment, to make available materials in the client's file when retention would un- fairly prejudice the client.

(c) Except for materials governed by paragraphs (d), (e) and (f), a lawyer shall take reasonable measures to retain a client’s file in a matter until at least six years have elapsed after completion of the matter or termination of the representation in the matter unless (i) the lawyer has transferred the file or items to the client or successor counsel, or as otherwise directed by the client, or (ii) the client agrees in writing to an alternative arrangement for the file’s custody or destruction, provided, however, that files relating to the representation of a minor shall be retained until at least six years after the minor reaches the age of majority. If the client has not requested the file within six years after completion or termination of the representation or within six years after a minor reaches the age of majority, the file may be destroyed except as provided in paragraphs (d), (e), and (f) below.

(d) Intrinsically valuable documents that constitute trust property of the client must be delivered to the client as provided in Rule 1.15(c). All other intrinsically valuable documents must be appropriately safeguarded and delivered in accordance with paragraph (b) above, or retained until such time as the documents no longer possess intrinsic value. If the client cannot be found, the lawyer shall securely retain such documents or, where applicable, deliver such items to an appropriate governmental repository.

(e) A lawyer shall not destroy a client’s file if the lawyer knows or reasonably should know that:

(1) a lawsuit or other legal claim related to the client matter is pending or anticipated;

(2) a criminal or other governmental investigation related to the client matter is pending or anticipated; or

(3) a disciplinary investigation or proceeding related to the client matter or a claim before the Client Security Board is pending or anticipated.

(f) Criminal defense counsel and defense counsel in delinquency cases shall retain a client’s files as follows:

265 (1) for the life of the client if the matter resulted in a conviction and a sentence of death or life imprisonment with or without the possibility of parole; and

(2) in all other criminal or delinquency matters, for ten years after the latest of the completion of the representation, the conclusion of all direct appeals, or the running of an incarcerated defendant’s maximum period of incarceration, but in no event longer than the life of the client.

(g) A lawyer shall take reasonable measures to ensure that the destruction of all or any portion of a client file shall be carried out in a manner consistent with all applicable confidentiality obligations.

Comments

[1] In order to represent clients competently in a matter, lawyers customarily maintain a file of papers and electronically stored information that will in the lawyers’ judgment aid in the representation. This Rule governs lawyers’ obligations with respect to the custody and destruction of client files. A lawyer’s obligations with respect to client funds are governed by Rule 1.15 and, with specific respect to trust property such as jewelry and other valuables entrusted to the lawyer by the client, by Rule 1.15(b)(4). Lawyers are encouraged to address disposition of client files in the written engagement letter required by Rule 1.5(b)(1) and, in instances where particular ar- rangements for disposition or transfer have not been made, in the lawyer's final communication to the client at the conclusion of a matter.

[2] The client’s file in a given matter consists of those items that must be made available upon the client’s direction to the client or successor counsel to provide a reasonably complete record of the services provided and, if the matter is unfinished, to give successor counsel what is needed to complete the representation. Thus, the client file for a litigation matter would include the pleadings and court filings, rulings and other documents issued by the court, all correspondence including with the client and opposing counsel, deposition transcripts, documents produced or received in discovery (subject to applicable protective orders), investigatory materials and expert reports, the trial record, memorialized legal research and analysis, and any settlement documents. In a case with a limited number of parties, the pleadings would include all the material pleadings. In a large case with many parties, such as a large bankruptcy proceeding, the pleadings would only include those directly relevant to the client’s claims and defenses. The client file for a transactional matter would include all correspondence, including with the client and counterparties and the exchange of drafts, contracts and other documents establishing the terms of the transaction (often gathered into a “closing binder”), and memorialized legal research and analysis.

[3] Multiple copies or drafts of the same document ordinarily do not constitute part of the client’s file unless the matter is unfinished, and the client and successor counsel must have the drafts to complete the representation. Similarly, a lawyer’s personal notes ordinarily do not constitute part of the client’s file unless the notes are the only record of a witness interview, a settlement negotiation, a meeting with regulators or prosecutors, or some similar event. Once a document is final-

266 ized or personal notes of an event are memorialized, this Rule does not require preservation of the drafts or notes. However, documents that are part of the client’s file at the time of a request for the file must thereafter be preserved and produced. Except as provided in Comment 4, this Rule does not require preservation of any physical documents that have been converted to electronic form.

[4] Unless other applicable law requires a particular document to be physically preserved for its legal effectiveness, a lawyer may maintain a client’s file in electronic form, provided, however, that, for documents stored only in electronic form, the lawyer must make reasonable efforts to store such electronic files in a form that can be read with available technology for any period during which the file must be retained. If the original form of the document is important, however, it should not be destroyed without the client’s permission.

[5] The client’s file does not include a lawyer’s administrative files such as conflict checks, billing and accounting records, and communications within a law firm concerning matters of administration such as account creation, billing and collections, logistics, and the assignment and evaluation of personnel assigned to the matter. Such documents may be subject to discovery in a dispute concerning the representation, but ordinarily do not need to be provided to the client or successor counsel at the client’s direction.

[6] Rule 1.15A does not supersede obligations imposed by court order, rules of a tribunal, or other law including discovery rules in civil cases, subpoenas and other mandatory process, and the law of spoliation and obstruction of justice. Similarly, Rule 1.15A does not supersede specific retention requirements imposed by other rules of professional conduct. See, e.g., Rule 1.5(c). The maintenance of records required for trust property and trust accounts is governed exclusively by Rule 1.15. A document may be subject to more than one retention requirement, in which case the lawyer should retain the document for the longest applicable period.

[7] Under paragraphs (c) and (f) of this Rule, the nature of the underlying case dictates the minimum time period that a file must be retained before it may be destroyed without client agreement. In addition, a lawyer may not destroy the files under paragraph (e) if the lawyer knows that there are legal or disciplinary proceedings pending or anticipated that relate to the matter for which the lawyer created the files, if the materials at issue are intrinsically valuable documents under paragraph (d), or if the lawyer has agreed otherwise. If the conditions imposed by this Rule are satisfied, the lawyer may destroy the files in a manner consistent with the lawyer's obligation to maintain the confidentiality of information relating to the representation under Rules 1.6 and 1.9 and other applicable law such as the Massachusetts Privacy Act, Mass. Gen. Laws c. 93H, and the HIPAA Privacy Rule, 45 C.F.R. Parts 160 and 164. See Rule 1.6(c). A lawyer may destroy a client’s file in accordance with this Rule notwithstanding the possibility that there could be further proceedings after the expiration of the time limits set forth in this Rule (such as a motion for a new trial or for relief from a judgment in light of changes in the law or the discovery of additional evidence), so long as such proceedings are not pending or anticipated at the time of the destruction.

267 [8] The lawyer’s obligations under this Rule to retain and return files to the client are not excused because the lawyer forwarded papers to the client from time to time during the course of the representation.

[9] Nothing in this Rule is intended to mandate that a lawyer destroy a file. A lawyer appropriately may decide to retain certain types or portions of files, or portions of files for longer than six years, such as files relating to a structured settlement or other matters creating long-term obligations to or by the client. Unless the lawyer and the client have otherwise agreed, a lawyer may retain a copy of the file or any document in the file.

268

Section 3B

Checklist When Terminating and/or Withdrawing from Representation and File Transfer/Retention

Christa A. Arcos, Esq. Two Main Street, Suite 325, Stoneham, MA

July 2018

. DISCUSS WITHDRAWAL WITH THE CLIENT & PLAN FOR TRANSFERRING CASE TO SUCCESSOR COUNSEL OR TO THE CLIENT PRO SE (See MRPC 1.16).

. IF THE CLIENT’S CASE IS PENDING BEFORE A COURT OR OTHER TRIBUNAL, PREPARE AND FILE A MOTION TO WITHDRAW.

o DO NOT INCLUDE CONFIDENTIAL OR PRIVILEGED INFORMATION IN THE MOTION TO WITHDRAW (See Admonition 18-12, disciplining attorney for disclos- ing confidential information when withdrawing and causing client harm).

o SERVE CLIENT WITH THE MOTION TO WITHDRAW, AS WELL AS OTHER COUNSEL OF RECORD.

. TAKE STEPS TO PROTECT THE CLIENT’S INTERESTS WHEN WITHDRAWING AS COUNSEL.

o FILE A MOTION TO EXTEND ANY DEADLINES.

o IF APPROPRIATE, FILE PLEADINGS TO PRESERVE CLIENT’S RIGHTS.

. EXAMPLE: NOTICE OF APPEAL.

. IF THERE IS A FEE DISPUTE WITH THE CLIENT, DO NOT FILE A COLLECTION ACTION UNTIL YOU HAVE COMPLETED THE PROCESS OF WITHDRAWING AS COUNSEL.

. CONSIDER THAT ANY COLLECTION ACTION IS LIKELY TO BE MET WITH A LE- GAL MALPRACTICE CLAIM AND/OR A BBO COMPLAINT ALLEGING THE FEE WAS EXCESSIVE.

o MRPC 1.5 sets forth the factors considered in determining whether a fee is reasonable.

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o MRPC 1.6 identifies obligations regarding confidential and privileged information when asserting claims and defenses.

. REVIEW NEW RULE 1.15A, EFFECTIVE SEPTEMBER 1, 2018, REGARDING FILE RETENTION AND OBLIGATION TO TRANSFER AND/OR COPY CLIENT FILES.

. ARTICLES:

o New Rule on Client Files Will Provide Clear Guidance for Lawyers, Joseph Berman, General Counsel, Board of Bar Overseers and Constance Vecchione, Bar Counsel (Ju- ly 2018), https://bbopublic.blob.core.windows.net/web/f/ClientFilesRule.pdf

o Flat Fees: A Three-Dimensional View, Dorothy Anderson, First Assistant Bar Counsel (June 2018), https://bbopublic.blob.core.windows.net/web/f/FlatFees.pdf

o Too Much of a Good Thing: Understanding the Rule 1.5(a) Prohibition on Clearly Ex- cessive Fees, Robert M. Daniszewski Assistant Bar Counsel (October 2017), https://bbopublic.blob.core.windows.net/web/f/clearly-excessive-fees.pdf

o The Ethics of Charging and Collecting Fees, Nancy Kaufman, Esq. and Constance Vecchione, Esq., edited by Alison Mills Cloutier, Esq. (Updated November 2015), https://bbopublic.blob.core.windows.net/web/f/ethicsfees.pdf

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Section 3C

Checklist for Conflicts

Christa A. Arcos, Esq. Two Main Street, Suite 325, Stoneham, MA

July 2018

Proper consideration of conflict issues involves a fact-intensive analysis that will vary from case to case and should always begin with a careful review of the relevant rules of ethics. See MRPC 1.7, 1.8., 1.9, 1.10, 1.11 & 1.12 and accompanying comments.

. IS THERE A NONCONSENTABLE CONFLICT?

o If so, representation cannot be undertaken and inquiry ends.

. IS THERE A POTENTIAL CONFLICT AND IF SO, IS IT LIKELY THE POTENTIAL CONFLICT WILL BECOME AN ACTUAL CONFLICT OR WILL MATERIALLY LIMIT REPRESENTATION?

o If there is a likelihood that an actual conflict will materialize, representation should not be undertaken and inquiry ends.

o If the potential conflict creates a significant risk that the lawyer’s “ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited,” representation should not be undertaken and inquiry ends.

. IF THERE IS A POTENTIAL CONFLICT THAT IS NOT LIKELY TO BECOME AN ACTUAL CONFLICT OR MATERIALLY LIMIT THE ATTORNEY, REPRESENTA- TION MAY BE UNDERTAKEN PROVIDED THAT THE ATTORNEY MAKES THE PROPER DISCLOSURES AND OBTAINS THE CLIENT’S “INFORMED CONSENT” IN A WRITTEN WAIVER.

o “‘Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Rule 1.0(f) of the MRPC.

. STEPS TO OBTAINING A WRITTEN WAIVER OF A POTENTIAL CONFLICT:

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o DISCUSS with each client all of the potential conflicts inherent in the circumstances of the particular matter being undertaken, as well as the potential consequences to the client if an actual conflict arises.

o CONFIRM IN A WRITING to each client the details discussed.

o HAVE EACH CLIENT SIGN THE WRITING that details the discussion.

. ARTICLE: C. Arcos, Multiple Party Representation and the New Conflict Rules: What you need to know, Massachusetts Lawyers Journal (MBA Jan/Feb 2017).

. SAMPLE DISCLOSURE AND WAIVER LETTERS IN MULTIPLE PARTY REPRESEN- TATION.

272 Section 3D

273 Section 3E Sample Potential Conflict Disclosure Letter—Civil Litigation

274 CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER− CIVIL LITIGATION

PRIVILEGED & CONFIDENTIAL RE: CONFLICT DISCLOSURE LETTER [DATE] Page 2

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

We have discussed and given careful consideration to the issues posed by simultaneous representation of both of you in defending this civil complaint. We have discussed that independent counsel representing one of you might want to pursue a strategy of shifting blame to the other. I understand that you have consulted with independent counsel regarding the advantages and disadvantages of simultaneous representation and you both agree that the risks posed by simultaneous representation are outweighed by the benefits which include, but are not limited to, your goal of trying to achieve a more favorable outcome with a united defense and to control the costs of defending the lawsuit. [INSERT MORE DETAIL HERE CONCERNING YOUR DISCUSSION REGARDING THE PARTICULAR FACTS OF THE CASE]. In my opinion, there is not an impermissible conflict with respect to the anticipated testimony, or incompatibility of your positions in relation to your defenses given your stated objectives.

Based upon our discussions, each of you understand that multiple party representation assumes that each of you will have a greater responsibility for decisions than when each client is independently represented. If at a future date the two of you were unable to agree with respect to a particular aspect of the litigation, you would need to resolve your differences on your own or with the assistance of independent counsel. With that understanding, you each have indicated that you have separate counsel with whom to confer if, and when, such separate advice of counsel might become necessary and you understand that the fees and expenses of such counsel are separate and independent of the retainer agreement with me.

CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER

275 CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER− CIVIL LITIGATION

PRIVILEGED & CONFIDENTIAL RE: CONFLICT DISCLOSURE LETTER [DATE] Page 3

Each of you also understand that the duty of loyalty is to both of you and that although information is kept confidential from third parties, as between the two of you there is no privileged or confidential information in a joint representation situation. Thus, I could not honor a request by one of you to keep certain information secret from the other. Further, such a request by one of you could create a potential conflict of interest that would require me to withdraw from representing both of you. If a potential conflict required my withdrawal as counsel, you would each incur the expense of hiring new counsel. Based upon my discussions with each of you, you each have agreed to deal openly and honestly with one another on all matters relating to the joint representation and do not anticipate any situation where either of you would request that some matter which is material to the representation would be kept from the other. However, if litigation were to eventuate between you, the privilege would not protect each of your communications with me from the other.

Further, based upon my discussions with each of you, neither of you possesses information or knowledge that would make you adverse to each other in this civil litigation. While unlikely in this case, the inherent risk when representation of multiple clients is undertaken includes the possibility that, at some future date, a conflict will arise between the parties that requires me to withdraw as counsel for one or both of the parties. By comparison, the benefits to both of you from joint representation in this civil litigation are significant. The joint representation will eliminate unnecessary duplication of work.

In the event that a future conflict arises in circumstances described in the preceding paragraphs, or any other circumstance, and the ethical rules require me to withdraw as counsel for one party, to the extent permitted by the Rules of Professional Conduct, I may continue to represent one of you individually.

Accordingly, I request that each of you sign and return to me the acknowledgment copy of this letter to confirm your understanding of the foregoing and your agreement that: (a) I may represent each of you in the civil litigation identified above; and (b) each of you has been afforded the opportunity to seek the advice of independent counsel.

As stated, you have the right to, and should, consult with independent counsel regarding your consent to multiple party representation and the within potential conflict disclosure.

Your anticipated attention to this matter is greatly appreciated.

CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER

276 CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER− CIVIL LITIGATION

PRIVILEGED & CONFIDENTIAL RE: CONFLICT DISCLOSURE LETTER [DATE] Page 4

Very truly yours,

Christa A. Arcos CAA\

Acknowledged and agreed this _____ day of ______, 2016

By: ______

JOHN SMITH

Acknowledged and agreed this _____ day of ______, 2016

By: ______

JANE JONES

CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER

277 Section 3F Sample Potential Conflict Disclosure Letter—Joint Estate Plan

278 CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER−JOINT ESTATE PLANNING

PRIVILEGED & CONFIDENTIAL RE: CONFLICT DISCLOSURE LETTER [DATE] Page 2 example, if the two of you were unable to agree with respect to a particular aspect of your joint estate plan, you would need to resolve your differences on your own or with the assistance of independent counsel hired at your own expense. Another potential conflict could arise if one of you wishes to change a part of the estate plan that you both agreed on without the consent of the other. I could not advise either of you concerning any such change, nor could I assist one of you in implementing such a change or the other in opposing the change. [INSERT MORE DETAIL HERE CONCERNING YOUR DISCUSSION REGARDING THE PARTICULAR FACTS OF THE CASE]. Based upon our discussions, each of you understand that joint representation assumes that each of you will have a greater responsibility for decisions than when each client is independently represented. By comparison, the benefits to both of you from joint representation are significant and will eliminate unnecessary duplication of work.

Please consider carefully whether you wish to proceed with joint representation. If you decide to proceed, each of you must sign the waiver below and forward it to my office. If you have any questions regarding either the potential conflict or the waiver, please feel free to contact me.

Very truly yours,

I, John Jones, acknowledge that I have read and understand the disclosures set forth above and further that I have the right to seek the advice of independent counsel concerning my decision to consent to joint representation. I have fully considered the consequences of joint representation and I wish to proceed.

Signed this ___ day of ______, 2016. ______John Jones

I, Jane Jones, acknowledge that I have read and understand the disclosures set forth above and further that I have the right to seek the advice of independent counsel concerning my decision to consent to joint representation. I have fully considered the consequences of joint representation and I wish to proceed.

Signed this ___ day of ______, 2016. ______

CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER

*The author acknowledges the contribution of Mary Schmidt, Esq. of Schmidt & Federico, P.C. in the preparation of this sample letter.

279 CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER−JOINT ESTATE PLANNING

PRIVILEGED & CONFIDENTIAL RE: CONFLICT DISCLOSURE LETTER [DATE] Page 3

Jane Jones

CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER

*The author acknowledges the contribution of Mary Schmidt, Esq. of Schmidt & Federico, P.C. in the preparation of this sample letter.

280 Section 3G

Revisions to the Rules of Professional Conduct: What You Need to Know

281

Section 3H

CJE Opinion No. 2018-03 Disclosure of Former Facebook Friendship

May 18, 2018

You ask for how long you must disclose that a lawyer appearing before you is a former Face- book friend. We left this question unanswered in Letter Opinion 2016-01.

In Letter Opinion 2016-01, the Committee on Judicial Ethics advised that the Code of Judicial Conduct prohibits a judge from being a Facebook friend with any lawyer who is reasonably likely to appear before that judge. We stated that this conclusion requires a judge to review the judge's Facebook friends and "unfriend" lawyers likely to appear before the judge. Aware that Facebook friends may range from close friends to virtual strangers, our rationale for requiring unfriending rested on the awareness that "[e]ven the most casual of Facebook friends may, for example, acquire personal information about the judge (e.g. celebration of a family event, a vacation destination) that could be used to convey the impression that the Facebook friend has special knowledge about and access to the judge." Letter Opinion 2016-01. This same rationale led us to impose a disclosure requirement. We advised that, "[i]f a judge knows1 that a lawyer appearing before the judge is a former Facebook friend, the judge should disclose the existence and nature of that past Facebook friendship even if the judge believes there is no basis for disqualification." Letter Opinion 2016-01. See Rule 2.11, Comment [5]. We did not, however, impose a time limit after which disclosure would no longer be required based solely on the former Facebook relationship.

In Letter Opinion 2016-08, we required a judge who uses LinkedIn to disconnect with any attorney reasonably likely to appear before that judge. We did not, however, impose a mandatory disclosure requirement. We instead stated that, "[i]f a judge knows that a lawyer appearing before the judge is a former LinkedIn connection, the judge should consider the nature of that past connection to determine whether disclosure is warranted." Letter Opinion 2016-08. Our rationale for not mandating disclosure in the LinkedIn context was that LinkedIn is primarily used for sharing professional, rather than personal, information, so a former LinkedIn connection is typically less likely to have acquired personal information about a judge that could be used to convey the impression of special knowledge and access.

The social media landscape has continued to evolve at a rapid rate, and we recognize that more new judges arrive on the bench with an-ever larger network of Facebook friends, many of whom may be most accurately described as acquaintances. In some cases, the past or present relation-

1 The Code defines "know" to require actual knowledge of the fact in question, although knowledge may be inferred from circumstances.

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ship may be so minimal that the Facebook friend is in essence a stranger. Going forward, we believe that the same disclosure standard should apply to both Facebook and LinkedIn. When a judge knows that a lawyer appearing before the judge is a former Facebook friend, the judge should consider the nature of the particular relationship to determine whether disclosure is warranted. In making this fact-based assessment, the judge should consider the nature of the (now- former) online friendship as well as the extent of any other relationship between the judge and the lawyer. The judge should additionally consider the personal information the judge has posted online that might be used by another to convey the impression of special access to the judge. A judge must always act to promote public confidence in the judiciary's integrity and impartiality and to avoid even the appearance of impropriety.

We modify the advice given in Letter Opinion 2016-01 as follows. When a lawyer who was a former Facebook friend appears before a judge, disclosure is no longer presumptively required. The judge should exercise his or her sound discretion based on all the facts to decide whether to disclose.

283 Section 3I

CJE Opinion No. 2016-01 Facebook: Using Social Networking Site

February 16, 2016

You have asked the CJE to advise you on the extent to which the principles and guidelines set forth in CJE Op. No. 2011-6 (“Facebook: Using Social Networking Website”) remain valid under the Massachusetts Code of Judicial Conduct in effect as of January 1, 2016 ("Code" or "2016 Code").

The fundamental principles of the 2016 Code are consistent with those of the predecessor Code. A judge must, at all times, uphold and promote the independence, integrity, and impartiality of the judiciary, and avoid impropriety and the appearance of impropriety. A judge must, at all times, maintain the dignity of judicial office and aspire to conduct that ensures the greatest possible public confidence in the judge's own conduct and in the legal system. A judge must avoid engaging in extrajudicial activities that are reasonably likely to interfere with the proper performance of the judge’s judicial duties or to lead to recurrent disqualification of the judge. A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens.

While the underlying principles remain the same, we are aware of the rapid growth and evolution in the use of electronic social media, such as Facebook. Judges newly-appointed to the bench may arrive with a Facebook account containing many hundreds of “friends,”1 so we must offer guidance that addresses both the status of pre-existing friends and the possible acquisition of new friends. It is also generally known today that Facebook members use that social media platform in very different ways. Some users post regularly, while others post rarely or never. Some users limit their Facebook friends to family and close, personal friends, while others have many acquaintances among their Facebook friends. Some users accept the vast majority of friend requests they receive, while others screen them carefully. Some users regularly review the postings and profiles of their friends, while others do not.

Moreover, we have the benefit of reviewing the many ethics opinions that have been issued by other jurisdictions, as well as the American Bar Association, since 2011. Almost without excep-

1 As of this writing, a Facebook friend is someone that the host (hereafter “the judge”) has given permission to view the judge’s Facebook page. Either the judge has sent a friend request that was accepted, or vice versa. While Face- book permits a judge to employ a variety of privacy settings to differentiate among Facebook friends, these settings may be used without the knowledge of the Facebook friend or others. Also, a judge may “unfriend” a Facebook friend; this results in the (now former) friend's loss of access to the judge’s page.

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tion, these opinions all note that a judge’s use of electronic social media (many of these opinions are not limited to Facebook) is, while permissible, “fraught with peril.” We agree.

Disagreement among jurisdictions continues, however, concerning whether a judge may be a Fa- cebook friend with a lawyer who may appear before the judge. Several jurisdictions (e.g., Con- necticut, Florida, and Oklahoma) prohibit judge-lawyer Facebook friendship on the grounds that it can convey the impression that the lawyer is in a special position to influence the judge. Sever- al other jurisdictions permit it, having concluded that Facebook friendship does not by itself convey the impression of being in a special position to influence the judge. Many jurisdictions have not specifically addressed the subject, and California appears to be the only jurisdiction to have specifically considered when a judge may need to “unfriend” a Facebook friend. As always, we are aware that jurisdictions in which judges stand for election often permit a degree of interaction with lawyers that is not permitted in Massachusetts.

I. RELEVANT PORTIONS OF THE CODE

Because Facebook is a medium for communication, a judge’s Facebook use may implicate many Code provisions, including the following:

• Rule 1.2, which requires that a judge “shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”

• Rule 1.3, which requires that a judge “shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”

• Rule 2.3, which requires that a judge perform all duties of judicial office without bias, prejudice or harassment.

• Rule 2.4, which requires that a judge “shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment,” and “shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.”

• Rule 2.9, which prohibits ex parte communications.

• Rule 2.10, which demarcates the restrictions on judicial speech on pending and impending matters.

• Rule 2.11, which sets forth the circumstances when a judge shall disqualify himself or herself.

• Rule 3.1, which provides that a judge must conduct all extrajudicial activities in a manner that does not interfere with Code principles and provisions.

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• Rule 4.1, which prohibits a judge from participating in political and campaign activities.

Improper use of Facebook may also implicate other provisions of the Code, such as the prohibitions on solicitation in Rule 3.7 and on practicing law in Rule 3.10.

II. GENERAL GUIDELINES

A judge who uses Facebook must avoid violating the Code’s restrictions, including those enumerated above. This requires a judge to be cautious concerning the judge's Facebook communications, that is, to think before engaging in electronic speech. A judge must avoid conduct that may interfere with the duties of judicial office (e.g., making improper comments on pending or impending matters, engaging in ex parte communications, suggesting that any person or party has special access to the court) or conflict with the dignity of judicial office (e.g., posting inappropriate photos). A judge must avoid any conduct that suggests that any person or organization is in a position to influence the judge. A judge must not use Facebook to endorse (e.g., "like" or "follow") commercial entities or political candidates, or otherwise violate the Code's restrictions on abusing the prestige of judicial office and participating in political activity.

Moreover, a judge must consider all of the judge's Facebook communications to be potentially public and, once made, wholly outside of the judge's control. Postings, including comments on other’s posts, may be transmitted without the judge’s permission or knowledge to unintended recipients, and Facebook communications may be taken out of context or relayed incorrectly. Facebook communications may be saved indefinitely.

The above guidelines are all consistent with CJE Op. No. 2011-6. We depart from that Opinion, however, when it comes to the monitoring and control that we may reasonably expect a judge to exercise over the judge’s Facebook friends. A judge must not, of course, authorize others to de- pict the judge or the judiciary in a manner that negatively impacts the integrity or impartiality of the judiciary. However, we are aware that a Facebook user often has no knowledge concerning the communications made by Facebook friends, and do not believe that a reasonable person would consider a judge to have endorsed a Facebook friend's communication unless the judge has so indicated by taking some affirmative action (e.g., "liking," "following," commenting, or reposting). If, however, a judge becomes aware that a Facebook friend's communications negatively impact the integrity or impartiality of the judiciary, a judge must "unfriend" that person. Similarly, a judge may not reasonably be expected to monitor all postings and comments on a Facebook page that the judge "likes" or "follows," but if the judge becomes aware of content that negatively influences the integrity or impartiality of the judiciary, the judge must stop "liking" or "following" that page.

We also part ways with CJE Op. No. 2011-6 because we do not believe that the Code requires a judge who uses Facebook to conceal the judge's judicial identity. A judge's appropriate use of Facebook should not threaten the dignity of judicial office, constitute an abuse of the prestige of judicial office, or otherwise violate the Code. It is reasonable to assume that a judge's Facebook friends will be aware of the judge's judicial office, and the Code governs a judge's personal as

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well as professional life. A judge may, of course, choose not to identify himself or herself as a judge on Facebook and may request that others do the same. Indeed, there may be sound reasons apart from ethical considerations for a judge to refrain from identifying his or her judicial role on social media -- such as the judge's concerns over the personal safety of the judge or the judge's family members. More generally, we recommend that judges consider carefully the benefits and attendant risks of being Facebook friends with more than a carefully-circumscribed circle of family and close friends.

III. LAWYERS AS FACEBOOK FRIENDS

The issue of a judge’s being a Facebook friend with lawyers is complex, particularly as the degree to which Facebook friendship signifies genuine personal friendship varies widely. Nonethe- less, we agree with the conclusion of CJE Op. No. 2011-6 that a lawyer who is a Facebook friend with a judge may appear to others to be in a special position to influence the judge. Even the most casual of Facebook friends may, for example, acquire personal information about the judge (e.g., celebration of a family event, a vacation destination) that could be used to convey the impression that the Facebook friend has special knowledge about and access to the judge.

In our judgment, the Code prohibits a judge from being Facebook friends with any attorney who is reasonably likely to appear before that judge. This bars a judge from making friend requests to or accepting friend requests from any lawyer reasonably likely to appear before the judge. This conclusion also requires that a judge review the judge's Facebook friends and "unfriend" lawyers who are reasonably likely to appear before the judge. If a judge knows2 that a lawyer appearing before the judge is a former Facebook friend, the judge should disclose the existence and nature of that past Facebook friendship even if the judge believes there is no basis for disqualification. See Rule 2.11, Comment [5].

Despite a judge’s best efforts to comply with the foregoing guidance, there may be instances where, unexpectedly, a lawyer whom the judge knows to be a Facebook friend appears before the judge. Because of the wide variability in the nature of Facebook friendships, disqualification may or may not be required. The scope of the Facebook friendship is one factor for the judge to consider when determining whether disqualification is required under Rule 2.11(A)(1). Where disqualification is ultimately unwarranted, the judge should both "unfriend" the lawyer and disclose on the record the existence and nature of the Facebook friendship. See Rule 2.11, Com- ment [5].

IV. CONCLUSION

Although a judge may use Facebook, the Code of Judicial Conduct limits the manner and extent of the judge's participation. Because of the presumptively public nature of Facebook communications, a judge must ensure that the judge's Facebook use does not undermine public confidence in

2 The Code defines "knows" to require actual knowledge of the fact in question, although knowledge may be inferred from circumstances.

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the judge or the judiciary. To uphold public confidence in the judicial system, a judge must not be Facebook friends with a lawyer who is reasonably likely to appear before the judge.3 4

3 The same standards applicable to a judge's Facebook friendship with a lawyer also apply to others who are reasonably likely to appear before the judge in an adversarial role, such as law enforcement personnel, expert witnesses, and parties. 4 Social media changes rapidly. A judge who uses Facebook is expected to stay reasonably informed about changes to that social networking service and, as appropriate, reassess whether and how those developments might impact the judge's permissible Facebook use.

288 Section 3J

CJE Opinion No. 2016-08 LinkedIn: Using Social Networking Site

September 6, 2016

You have asked the CJE whether you may accept Linked in requests from attorneys who appear before you. You have also asked whether you must disconnect from Linked In connections you may have with attorneys who appear before you.

Your question requires us to consider whether our analysis and advice in Letter Opinion No. 2016-01, Facebook: Using Social Networking Site, is applicable to Linked In. We believe that the same overarching principles and concerns stated in Op. 2016-01 apply to all forms of social media that are currently available. Different types of social media networking may, however, pose distinct issues due to their features and the nature and extent of the audience with access to content posted by the judge.

Linked In is primarily a business-oriented social networking site, although some Linked In users post personal updates on and send personal messages through their Linked In accounts. A Linked In user, like a Facebook user, creates a personal profile. The Linked In user may then invite others "to connect" and respond to invitations "to connect" sent by others. Affirmative replies lead to the establishment of a "connection." Users may also "like" a connection's updates and achievements, endorse a connection's skills, and post recommendations. These actions will generally be visible on the profile page of the connection (although a Linked In user may choose not to post endorsements and recommendations). Linked In's default settings permit each user to view each connection's entire list of connections and vice versa. This is considered one of the most useful aspects of Linked In; a Linked In user may ask a connection (a first-order connection) to introduce the user to one of the connection's connections (a second-order connection). While Linked In resembles Facebook by requiring a person's affirmative response to connect with another, many if not most Linked In users seek to grow their number of connections so as to increase their business network. Moreover, Linked In user profiles are generally available to any other Linked In user (even if not a connection) who logs onto the Linked In website and enters the name of any person with a Linked In profile.

In our judgment, and consistent with Op. 2016-01, a judge who uses Linked In may not be connected with any attorney who is reasonably likely to appear before that judge. This conclusion requires a judge to reject requests to connect with and to disconnect from lawyers who are reasonably likely to appear before the judge1. Because of the prevalence of professional recommen-

1 This requirement also applies to parties or witnesses reasonably likely to appear before the judge.

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dations and endorsements of professional skills that appear on many Linked In profiles, discon- nection and disclosure are necessary to protect the independence, integrity, and impartiality of the judiciary. Despite a judge’s best efforts to comply with the foregoing guidance, there may be instances where, unexpectedly, a lawyer whom the judge knows2 to be a Linked In connection appears before the judge. The existence and nature of the Linked In connection (e.g., whether, while the judge was a practicing attorney, the judge had posted a recommendation or endorsement on the profile page of this lawyer) is one factor for the judge to consider when determining whether disqualification is required under Rule 2.11(A)(1). Where disqualification is unwarranted, the judge should both disconnect from the lawyer on Linked In and disclose on the record the existence and nature of the Linked In connection. See Rule 2.11, Comment [5]. If a judge knows that a lawyer appearing before the judge is a former Linked In connection, the judge should consider the nature of that past connection to determine whether disclosure is warranted. See Rule 2.11, Comment [5B].

As the use of social media continues to grow, we again emphasize judges' obligations under the Code of Judicial Conduct, including the obligations to uphold and promote the independence, integrity, and impartiality of the judiciary; promote public confidence in the judiciary; avoid both impropriety and the appearance of impropriety in their professional and public lives; maintain the dignity of judicial office at all times; avoid abuse of the prestige of the judicial office; refrain from political activity; and conduct all personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. Judges must expect to be the subject of public scrutiny that might be burdensome if applied to other citizens. Each judge who uses social media must take steps to minimize the likelihood that the manner in which that judge uses social media would lead a reasonable person to question the judge's impartiality.

Judges must, of course, be aware that all social media communications may become public. See, e.g., In the Matter of Archer (Alabama Court of the Judiciary, August 8, 2016) (judge conducted what he regarded as "private" Facebook communications with a Facebook friend who made a copy of these communications and shared them with a reporter). There may also be sound reasons, apart from ethical considerations, for a judge to exercise restraint when using social media, such as the judge's concerns over the personal safety of the judge or the judge's family members. As we stated in Op. 2016-01, judges inclined to use social media should carefully weigh the risks and benefits.

2 The Code defines "knows" to require actual knowledge of the fact in question, although knowledge may be inferred from circumstances.

290 Section 3K

CJE Opinion No. 2016-09 Twitter: Using Social Networking Site

November 22, 2016

You have an active Twitter account, and have requested advice concerning your continuing use of Twitter. In general, the same overarching principles and concerns stated in Letter Op. 2016- 01 and Letter Op. 2016-08 apply to all forms of social media that are currently available. Different types of social media pose distinct issues, however, due to their features and the nature and extent of the audience with access to content posted by the judge. We therefore begin with an overview of how Twitter functions, before turning to the relevant ethical rules that are potentially implicated by your particular use of Twitter.

I. TWITTER

Twitter is a social network that permits a user (anyone who has created a Twitter handle and posts to a Twitter account) to create and share information in the form of tweets. Tweets may be up to 140 characters and may include images or videos. Because of this element of brevity, Twitter is sometimes referred to as a "microblog." The subject of a user's posts are limited only by the user's imagination.

Twitter is meant to be shared; users follow selected other users. Each Twitter user has a homepage that includes a "feed"; the feed displays the stream of tweets a user receives from all Twitter accounts that user follows. A user may choose to post selected tweets from the feed; this is known as retweeting. When a user retweets, the twitter handle of the user who created the tweet is displayed. Unless the user indicates otherwise, the act of retweeting generally suggests that the user endorses the views expressed. A user may also "like" others' tweets.

Twitter users generally seek widespread public dissemination of their posts. A user's posts (tweets and retweets) are viewed by others in one of two ways. Most commonly, a user's posts will show up on the feed of any person who has chosen to follow that user. A user's posts are also publicly available to any person who visits Twitter.com (whether or not a registered Twitter user) and enters the user's name. Although a user may take steps to limit access to the user's Twitter account1, that is rarely done, and you have not done so.

1 This is known as a "protected account"; in such an account, the user's posts, the identities of those a user follows, and the identities of those who follow a user, are not visible to the public. However, as with other forms of social media, a Twitter user must assume that all communications are potentially public.

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II. CODE REQUIREMENTS

As we noted in our opinions concerning Facebook and Linked In, judges in Massachusetts are not prohibited from using social media, but their use must comply with their obligations under the Code of Judicial Conduct (Code). These include the obligations to uphold and promote the independence, integrity, and impartiality of the judiciary; promote public confidence in the judiciary; avoid both impropriety and the appearance of impropriety in one's professional and personal life; maintain the dignity of judicial office; avoid abuse of the prestige of the judicial office; refrain from political activity; and conduct all personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. The Code applies to judges in their private as well as public spheres, and a judge must expect to be the subject of public scrutiny that might be burdensome if applied to other citizens. As is also true with other forms of social media, each judge who uses Twitter must err on the side of caution and be aware that posts a judge-user considers neutral may nonetheless lead a reasonable person to question the judge's impartiality.

Specific Code provisions relevant to the use of Twitter include the following:

• Rule 1.3, which requires that a judge “shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”

• Rule 2.2, which requires that a judge shall uphold and apply the law, and perform all duties of judicial office fairly and impartially, regardless of a judge's unique background and personal philosophy

• Rule 2.3, which requires that a judge perform all duties of judicial office without bias, prejudice or harassment.

• Rule 2.9, which prohibits ex parte communications.

• Rule 2.10, which places restrictions on judicial speech on pending and impending matters.

• Rule 2.11, which sets forth circumstances in which a judge must disqualify himself or herself.

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• Rule 3.1, which provides that a judge must conduct all extrajudicial activities in a manner that does not interfere with Code principles and provisions.

• Rule 3.10, which provides that a judge may not give legal advice to others.

• Rule 4.1, which prohibits a judge from participating in political and campaign activities.

III. YOUR TWITTER ACCOUNT

Your Twitter account announces that you are an active judge.Your Twitter handle is the word "judge" followed by your surname, and numerous tweets include a photo of you wearing your judicial robe2.Your posts are publicly available; you have not limited access to your account, and your posts, the accounts that you follow, and the identities of your followers are available to be seen by the public at large.

The Committee is of the opinion that, when a judge is posting publicly as a judge, the judge must be exceptionally cautious. The reason is that the public may perceive the judge’s communications to have the imprimatur of the courts3. In general, a public, unrestricted Twitter account of an identified judge may be used only for informational and educational purposes. If the judge so desires, the account also may reflect who the judge is as a person, as well as a judge, so long that the judge is careful not to implicitly or explicitly convey the judge's opinions on pending or impending cases, political matters, or controversial or contested issues that may come before the courts. In addition, as to each piece of information revealed by the judge's Twitter account (whether it is a tweet, a retweet, a "like," the identity of an account that the judge follows, or the identity of an account that follows the judge) the judge must consider whether it would cause a reasonable person to question the judge's impartiality.

IV. YOUR TWITTER POSTS

Many of your Twitter posts fall into certain categories, which we consider below. In the case of retweets, we consider both the content and the source of the posts. Our answers are intended to illuminate the general application of various Code provisions. Each judge who uses Twitter or other forms of social media must, of course, consider whether the application of this advice in the judge's individual circumstances will be consistent with the Code. A judge must, for example, always consider whether a particular post or communication would be improper in light of cases pending before that judge and that judge's typical caseload.

2 We do not offer an opinion today on the use of a Twitter account by a judge who does not disclose his or her occu- pation as a judge, other than to note that the Code, of course, applies to judges in their private as well as public spheres. We also do not offer an opinion today on a judge’s use of a private or restricted Twitter account. 3 The risk is heightened because courts have official Twitter accounts, which are used for outreach, education, and information. See http://www.mass.gov/courts/social-media-policy.html

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• Posts that share upcoming and past bar events and other news of general interest to members of the Bar (e.g. the establishment of new specialty courts, the election of bar leaders, the nomination of judges). Much of this information is in the nature of retweets from bar associations, law schools, courts, and other organizations and institutions dedicated to maintaining high standards and professionalism among the bench and bar. These posts are consistent with the Code.

• Posts that advise trial lawyers on trial practice (e.g., preparing clients to testify, delivering closing arguments, conducting cross-examination). Purely educational posts are consistent with the Code, but posts that a reasonable person may regard as demonstrating personal bias or improper comment on a pending case are not. You must make certain that the posts do not reflect your reaction, whether complimentary or critical, to the in-court behavior of any readily identifiable person. Avoiding a close temporal proximity between the time that you observe the behavior and the time that you post a tweet on that subject will help ensure that such posts are perceived to be purely educational. Your posts must, of course, offer only practice tips and not legal advice.

• Posts that report on selected cases decided by other courts, including the Massachusetts Su- preme Judicial Court and the United States Supreme Court. These posts often report court decisions concerning racial discrimination, police misconduct, or both. Some concern issues, such as assessing the credibility of police officers, which you confront on a regular basis.

• Reporting court decisions, even on selective topics, is consistent with the Code, but only if the reports do not compromise or appear to compromise your impartiality. To avoid conduct that a reasonable person may regard as demonstrating partiality, you must take certain pre- cautions when reporting on cases. Tweets or retweets must be from official or neutral sources such as court websites or libraries.You must not retweet or link to case reports from persons or organizations with legal opinions that are clearly on one side of contested and highly- charged legal issues. Reports even by "mainstream media" should be avoided, as such reports may contain commentary or reaction favoring one point of view.

• Posts intended to reveal the existence of racism and implicit bias in the courts. We are, of course, aware that Massachusetts court leaders comment on and are taking steps to address these important concerns. Nonetheless, caution is required when posting on controversial social or legal issues that may come before you in the course of your judicial duties. Posts must serve a legitimate educational or informational purpose, and you must avoid posts that individually or as a pattern would lead a reasonable person to conclude you have a predisposition or bias that calls your impartiality into question.

• Posts that detract from the dignity of the judiciary and the court system. Examples include excerpts from an examination in which a defendant used profanity when addressing the judge and another reporting that a defendant threw bottles of urine and feces at a judge following sentencing. A reasonable person may perceive these posts to be needlessly offensive, or as

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making light of behavior by litigants who may have mental health problems. Posts of this nature must be avoided.

• Posts that include photographs of litigants, attorneys, court personnel and other judges. In some instances, you post photographs that appear to show litigants, attorneys, court personnel, and judges in your courtroom or lobby. In other instances, you have posted photos that include children. Privacy and safety concerns require that you obtain consent from any person (or from a parent, in the case of a minor) whose image you post, unless you are retweeting a photo that was previously disseminated to the public by the press, an organization or association of judges or lawyers, or other similar source.

• Posts that generally reflect pride in your personal characteristics, background, and achievements. These posts reflect acknowledgement of and pride in your personal characteristics, circumstances in your background, and accomplishments, and are not indicative of personal bias or prejudice. It is long-settled that a judge’s gender, race, or other personal characteristics are not grounds for a reasonable person to question the judge's ability to interpret and apply the law fairly and impartially4. These posts are consistent with the Code.

We also address the issue of Twitter accounts that you follow. Because your Twitter account is publicly accessible, the list of accounts you follow is readily available to your followers as well as anyone who visits your account at Twitter.com. Additionally, pop-up notices occasionally call attention to those you follow, even if you do not retweet from those accounts. Consequently, you must be cautious when selecting accounts to follow and avoid, for example, following the accounts of political candidates or parties.

V. CONCLUSION

As we observed at the outset, the same overarching considerations apply to all forms of social media, but different types of social media may raise distinct issues and require distinct cautions. The use of Twitter poses special challenges, especially where the judge maintains a public, unrestricted account, and posts as a judge. For the reasons stated above, in some respects your current use of Twitter is consistent with the Code, but in others, it is not.

4 Courts have conclusively rejected the repugnant view that a judge’s gender, race, or ethnicity is evidence that the judge cannot administer the law fairly. See e.g., MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 138 F.3d 33, 37 (2d Cir. 1998) (a suggestion that a judge cannot administer the law fairly because of the judge's racial and ethnic herit- age is extremely serious and should not be made without a factual foundation going well beyond the judge`s membership in a particular racial or ethnic group); Commonwealth of Pennsylvania and Raymond Williams v. Local Union 542, International Union of Operating Engineers, 388 F. Supp. 155, 181 (E.D. Pa. 1974) (Judge A. Leon Hig- ginbotham famously observed that “[white] litigants are going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations”).

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Section 3L

ABA Opinions 483, 481 & 480

American Bar Association Formal Opinion 483 (October 17, 2018): Lawyers’ Obligations After an Electronic Data Breach or Cyberattack1

American Bar Association Formal Opinion 481 (April 17, 2018): A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error2

American Bar Association Formal Opinion 480 (March 6, 2018): Confidentiality Obligations for Lawyer Blogging and Other Public Commentary3

1 See ABA website for a copy of the opinion (https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_op_483.pdf). 2 See ABA website for a copy of the opinion (http://www.abajournal.com/files/Formal_Opinion_481_FINAL_formatted_04_16_2018(2).pdf). 3 See ABA website for a copy of the opinion (http://www.abajournal.com/files/FO_480_FINAL.pdf).

296 Section 3M

What’s in a Statement? Truth and Accuracy in Preparing and Executing Sworn Documents

by Christa A. Arcos

December 2004

It is Friday afternoon and you are an associate preparing an emergency motion for an ex parte real estate attachment in a pending Massachusetts Superior Court lawsuit for your firm’s most important client. The client had notified your firm earlier in the week that the defendant had executed a purchase and sale agreement to transfer a commercial property the following Tuesday at 10:00 a.m. If this commercial property is sold, the client believes that the proceeds will disappear and that there will be no other assets from which to satisfy a potential judgment in the pending lawsuit. You speak with the client by telephone at 3:00 p.m. on Friday afternoon and read the affidavit to him. He verifies its content; however he is in his car speaking to you by cell phone and will not have access to a fax machine within the next hour. The client demands that the motion and affidavit be filed immediately. Accordingly, he authorizes you to sign his name and to file the motion and affidavit before the close of business that day.

Pursuant to Rule 4.1(f) and (h) of the Massachusetts Rules of Civil Procedure and Superior Court Rule 9A(a)(1), the motion must be supported by an affidavit signed under the penalties of perjury. Can you sign the client’s name to the affidavit in support of the motion? The short and une- quivocal answer is, no.

When specifically authorized to do so, it is a commonly accepted practice for a lawyer to sign another individual’s name to a letter, pleading or motion, along with the lawyer’s initials. How- ever, the same is not true with respect to an affidavit or any other pleading or document signed under the penalties of perjury. The purpose of such an affidavit is to present the sworn statement of the client, not the lawyer. When you sign a client’s name to a document under the penalties of perjury, you are also misrepresenting your signature to be that of the client. Your client’s authorization does not cure this problem.

Mass. R. Prof. C. 8.4, in relevant part, provides that it is professional misconduct for an attorney to:

(d) engage in conduct that is prejudicial to the administration of justice; . . .

297 (h) engage in any other conduct that adversely reflects on his or her fitness to practice law.

Signing the client’s name to this affidavit and filing it in court would constitute a violation of these rules. You would also be making an intentional misrepresentation to the court in violation of Rule 3.3(a)(1), which prohibits making a false statement of material fact or law to a tribunal. See Matter of Molloy, SJC No. BD-2003-067 (November 5, 2003)(three-month suspension for, among other misconduct, signing or directing someone else to sign the client’s name to an affidavit and then filing it with the court). Even if the affidavit were not going to be filed in court or used in litigation, signing another’s name to a document under the penalties of perjury would still be a misrepresentation in violation of Mass. R. Prof. C. 8.4(c).

What if the associate in this hypothetical had signed the client’s name to the affidavit and then added his own initials, indicating to the court that it was he, the attorney, and not the client that had signed the affidavit? Although there would then be no misrepresentation concerning who signed the affidavit, the document obviously has not been signed under oath by the putative signatory, as required. The court may reject the filing, which potentially could create other problems for the associate and the client.

Misrepresentations in sworn documents filed with a court can result in discipline even where the attorney is not the actual signatory and even if those misrepresentations do not relate to the substance of the litigation. In Matter of Cross, 15 Mass. Atty Disc. R. 157 (1999), a lawyer was publicly reprimanded for filing a return of service with the court that she knew or should have known was not true or correct. On the last day of the 120-day time limit for service, and unable to find a constable, the lawyer decided to serve the complaint herself. She and a friend drove to the corporate defendant’s office, where the lawyer left a copy of the complaint while the friend remained in the car. The lawyer filled out the return of service and directed her friend to sign it, thereby implying that the friend had made service at the corporate defendant’s office.

Exigent circumstances are not a defense to signing a client’s name to a sworn document. Similar- ly, the constraints of a busy schedule will not excuse the attorney’s signing a client’s name to a sworn document. In Matter of Guinane, SJC No. BD-2004-0038 (March 8, 2004), an attorney received a one-month suspension after he prepared and signed an affidavit in his client’s name to support a motion to suppress evidence in a criminal case. In that case, the motion had to be filed in court within seven days of the hearing and the attorney found himself “too busy to drive sixty- five miles” to obtain his incarcerated client’s signature.

What then should you do when faced with the impossibility of obtaining your client’s signature to an affidavit or other sworn statement prior to the expiration of an impending deadline? The most straightforward option is to file a motion to extend the deadline so that you will have sufficient time to meet with the client and obtain his or her signature. The other available options may vary from case to case. If permitted by the particular court, and preferably by agreement with opposing counsel, you can file an unsigned affidavit with the understanding that you will substi- tute or supplement it with a signed affidavit on the day of the hearing.

298 In other instances, lawyers have filed affidavits of counsel, making statements based upon “information and belief.” However, anytime you file an affidavit of counsel, you run the risk of becoming a witness in the case, which obviously is its own problem. It is also imperative that you not disclose privileged or confidential information and that you read the affidavit to the client, and review its content together, before it is filed. In Guinane, the attorney not only prepared and signed the client’s affidavit, but also did so without discussing the content of the affidavit with the client.

In our hypothetical, your options are limited. If the court will not allow you to file the motion with an unsigned affidavit from your client for the purposes of scheduling the hearing for early Monday morning, you will have to obtain the client’s signature over the weekend and file the motion and supporting affidavit on Monday morning.

In sum, when a document must be signed under the penalties of perjury, resist the pressure to take shortcuts. Leave plenty of time to draft the required affidavit and to obtain your client’s or the witness’s signature. Require the affiant to read sworn statements carefully. It is advisable that you be available to answer questions at the time that your client or the witness reviews the sworn document. Emphasize how important it is that each statement be truthful and accurate because the document is being signed under the penalties of perjury. Keep in mind also that any affidavit and the circumstances of its creation and execution may well be the subject of a later deposition or cross-examination at trial. Always ensure that the signature on a sworn statement does, in fact, belong to the affiant. As other Bar Overseer articles have pointed out, the road to discipline or malpractice is often paved with good intentions.

299 Section 3N

Wearing Two Hats: Dual Practices and Ancillary Businesses

by Christa A. Arcos, Assistant Bar Counsel

December 2003

Although attorneys have historically been allowed both to practice law and to pursue other business activities, the rendering of nonlegal services by attorneys or entities in which attorneys have an ownership interest raises several ethical concerns. These so called “dual practice” or “ancillary business” issues commonly arise where a practicing attorney holds another professional license or owns or has an interest in a company that provides services that are arguably “law- related.” While the Massachusetts Rules of Professional Conduct do not contain a specific prohibition on the simultaneous participation of attorneys in other businesses and professions, they do place constraints.

Rule 5.7 of the Massachusetts Rules of Professional Conduct identifies the responsibilities of an attorney who provides law-related services, defined as “services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a non-lawyer.” Exam- ples of law-related services include “providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting.” Mass. R. Prof’l C. 5.7, comment 9. It is permissible, and probably advisable, for lawyers to provide law-related services through “an entity that is distinct from that through which the lawyer provides legal services.” Rule 5.7, comment 4.

Where an attorney provides law-related services through the law firm “in circumstances that are not distinct from the lawyer’s provision of legal services to clients,” the attorney’s conduct is subject to the Rules of Professional Conduct. Rule 5.7(a)(1). For example, a sole practitioner who is also a Certified Public Accountant (“CPA”) may want to list both professions on the law firm letterhead and in law firm advertisements. If an attorney’s dual professional status is made known to clients or potential clients of the firm, or listed on firm letterhead, or in advertisements or solicitations for the law firm, the attorney’s activities in providing CPA services may be governed by all of the ethical rules such as, for example, those on conflicts of interest, confidentiality, and business transactions with clients.

If this same attorney provides CPA services through a separate entity, the attorney still will be subject to all of the Rules of Professional Conduct unless the attorney takes “reasonable measures” to ensure that the recipient of the financial services “knows that the services of the

300 separate entity are not legal services and that the protections of the client-lawyer relationship do not exist.” If such measures are taken, the Rules of Professional Conduct that relate to the client- lawyer relationship do not apply. See Rule 5.7(a)(2) and comment 4. “Reasonable measures” should include a sufficient explanation to the recipient of the services, preferably in writing, that the additional services are not legal services and that the ethical rules, including the attorney- client privilege, do not apply. See Rule 5.7 comments 4 and 6-8.

In either event, a lawyer’s conduct in all business transactions is always subject to those ethical rules that apply generally to a lawyer’s conduct, irrespective of whether the conduct relates to the provision of legal services. For example, lawyers may not engage in dishonesty, fraud or misrepresentation or violate criminal statutes regardless of whether they are acting as lawyers or in some other capacity. See Rule 5.7 comments 2, 11 and Rule 8.4.

If an attorney forms a partnership or other business entity with nonlawyer professionals to offer law-related services, the business entity cannot provide legal services to the public or to clients without raising numerous ethical dilemmas. The Rules of Professional Conduct strictly prohibit attorneys from forming “a partnership or other business entity with a nonlawyer if any of the activities of the entity consist of the practice of law.” Rule 5.4(b); see also Boston Bar Association, Ethics Op. 1999-B (noting that an entity owned by lawyers and nonlawyers “cannot offer any legal services to its customers”).

Advertising

A law firm and an ancillary business that has nonlawyer owners cannot advertise together. The public may perceive, correctly or incorrectly, that the ancillary business and the law practice are combined. See State Bar of Mich. Standing Comm. on Prof’l and Judicial Ethics, Op. RI-135 (1992) (1992 WL 510826); N.J. Sup. Ct. Advisory Comm. on Prof’l Ethics, Op. 657 (1992) (1992WL257816) (prohibiting law firm from advertising jointly with ancillary business). Creat- ing such a public misperception could violate Rules 7.1 through 7.5, which prohibit misleading advertisements or solicitations.

Sharing Legal Fees

Attorneys are also prohibited from sharing legal fees with nonlawyers or assisting nonlawyers in the unauthorized practice of law. Rule 5.4(a) and Rule 5.5(b). Accordingly, the CPA/attorney in our example could only consider employment with, or a partnership in, a CPA firm if the sole business of the CPA firm is the provision of accounting or related financial services. If the CPA/attorney provided legal services to the CPA firm’s clients and any portion of the fee for legal services went to the CPA firm, the attorney might be in violation of Rules 5.4(a) and 5.5(b).

The CPA/attorney’s ethical dilemma would not necessarily be remedied if he or she provided “free” or “discounted” legal services to the CPA firm’s clients through his or her law practice. Under Rule 7.3(f), an attorney cannot give “anything of value to any person or organization to solicit professional employment for the lawyer from a prospective client.” See Sup. Ct. of Ohio

301 Bd. of Comm’rs on Grievances and Disp., Op. 92-17 (1992) (1992 WL 796110); Sup. Ct. of Texas Prof’l Ethics Comm., Op. 531 (1999) (1999 WL 1007267). Advisory ethics opinions in at least one jurisdiction have held that giving free or discounted legal services to clients of the ancillary business transfers the value of the legal services to the package of services the ancillary business sells to its clients, and as such constitutes an impermissible “reward” or “compensation” to the ancillary business, in violation of attorney ethical rules. See Sup. Ct. of Ohio Bd. of Comm’rs on Grievances and Disp., Op. 92-17 (1992) (1992 WL 796110); Sup. Ct. of Ohio Bd. of Comm’rs on Grievances and Discp., Op. 88-012 (1988) (1988 WL 508803) (if attorney provides a free consult to funeral director’s clients, the attorney impermissibly compensates the funeral director by adding value to the package of services the funeral director sells to his or her customers).

Referrals and Solicitation

When an attorney participates both in a law practice and a business that provides law-related services, a commonly asked question is whether the ethical rules allow the referral of business between the two professional practices. Referrals from the law firm to a law-related business in which the lawyer has an ownership interest constitute business transactions with a client. Com- ment 5 to Rule 5.7 requires a lawyer to comply with the requirements of Rule 1.8(a) on entering into business transactions with clients when referring a client “to a separate law-related service entity controlled by the lawyer, individually or with others.” If the attorney complies with the requirements of Rule 1.8(a) that the transaction be fair and reasonable and that there be full disclosure and consent in writing, referrals from the law firm to the ancillary business may be permissible in some situations. See Boston Bar Association, Ethics Op. 1999-B; Cal. State Bar Standing Comm. on Prof’l Resp. and Conduct, Op. 154 (1999) (1999 WL 692059); State Bar of Mich. Standing Comm. on Prof’l and Judicial Ethics, Op. RI-135 (1992) (1992 WL 510826).

When the ancillary business refers its clients to the attorney’s law firm, or the attorney while wearing his or her “business hat” seeks to solicit legal business from the clients of the ancillary business, arguably the ethical rules on advertising and solicitation apply. See Boston Bar Associ- ation, Ethics Op. 1999-B. The attorney must first ensure, as previously discussed, that there has been no violation of Mass. R. Prof. C. 7.3(f) by giving something of value in return for solicitation of the client.

Beyond the problems raised by Rule 7.3(f), the attorney may not be able to engage in personal or in-person solicitation. Although Rule 7.3(c) allows attorneys to solicit prospective clients with written communications if those communications comply with the provisions of that rule, Rule 7.3(c) prohibits solicitation through personal communication unless those “prospective clients are persons with whom the lawyer had a prior attorney-client relationship,” or are persons that fall under other exceptions not applicable here. At least two advisory ethics opinions have rea- soned that an attorney who renders services to clients through a separate law-related business does not have a “prior attorney-client relationship” with those clients for the purposes of making future solicitations on behalf of the attorney’s law firm. See California State Bar Standing Comm. on Prof’l Resp. and Conduct, Op. 1995-141 (1995) (1995 WL 530260 p.10, footnote 12);

302 State Bar of Mich. Standing Comm. on Prof’l and Judicial Ethics, Op. RI-135 (1992) (1992 WL 510826); cf. Boston Bar Association, Ethics Op. 2002-B (lawyers may not solicit clients of the ancillary business for legal business in violation of Rule 7.3).

The key point, however, concerning referrals from the business to the law practice, is that even when the ancillary business is appropriately separated from the attorney’s law practice (such that the attorney’s business conduct is not subject to all of the Rules of Professional Conduct), the attorney is always subject to the Rules of Professional Conduct in his or her law practice. See N.Y. State Bar. Ass’n Comm. on Prof’l Ethics, Op. 752 (2002) (2002 WL 1303478). Thus, when soliciting or considering a person as a prospective client for the law practice, the attorney’s ownership interest in, or even employment with, an ancillary business creates the potential for numerous, possibly unwaivable, conflicts. See Rules 1.7 through 1.10; see also N.Y. State Bar. Ass’n Comm. on Prof’l Ethics, Op. 752 (2002) (2002 WL 1303478) (discussing dual roles of an attorney to which a client cannot consent); cf. Boston Bar Association, Ethics Op. 2002-B.

Conflicts

Conflicts can arise when a business client becomes a law firm client or when an unrelated party seeks to pursue a claim against or involving a business client. In either situation, the attorney’s provision of business services, or interest in maintaining a good relationship with an ancillary business and its clients, may well constitute a “responsibility” to a third person or a “personal interest” of the attorney subject to scrutiny under Rule 1.7(b). At least one jurisdiction has opined that if the attorney “possesses confidences of the business customer which could be compromised by undertaking a legal matter which is adverse to the business customer[,]” the attorney may have to decline the new legal matter. See State Bar of Mich. Standing Comm. on Prof’l and Judicial Ethics, Op. RI-135 (1992) (1992 WL 510826).

Some conflicts cannot be waived. Other conflicts can be waived with the informed consent of the clients involved. Under Rule 1.7(b), “if the representation of [a] client may be materially limited by the lawyer’s responsibilities . . . to a third person, or by the lawyer’s own interests[,]” the attorney must decline representation unless the lawyer reasonably believes that the legal representation will not be affected and the client gives informed consent. See Rule 1.7(b) and comments 7,12, & 12A; see also Boston Bar Association, Ethics Op. 2002-B (when acting as an attorney, rules require independent assessment of client’s best interests); N.Y. State Bar. Ass’n Comm. on Prof’l Ethics, Op. 752 (2002) (2002 WL 1303478).

Along the same lines, the attorney’s ethical duties to existing or prior clients of the law practice may prevent an attorney from rendering nonlegal services to prospective business clients if doing so would conflict with the attorney’s duties of loyalty to law practice clients. Rules 1.6 through 1.10. And, of course, if the attorney’s independent assessment of a prospective client’s best interests would result in legal advice that would be contrary to the financial or other interests of the ancillary business, the lawyer should decline to represent the prospective client. See Rule 1.7(b); see also Boston Bar Association, Opinion 2002-B; State Bar of Mich. Standing Comm. on Prof’l and Judicial Ethics, Op. RI-135 (1992) (1992 WL 510826).

303 As the discussion in this article illustrates, the provision of business services in many areas may overlap with the rendering of legal services, such that business services that might otherwise be performed by laypersons may be subject to the Rules of Professional Conduct when performed by an attorney. Engaging in dual professional practices may be a desirable and profitable undertaking, but only after a careful evaluation of the ethical concerns.

304 Section 3O

Smaland Beach Association, Inc. v. Genova, 461 Mass. 214 (2012)

SMALAND BEACH ASSOCIATION, INC. vs. ARTHUR F. GENOVA & another [1]; ALLAN BARTLETT & others, [2] third-party defendants. 461 Mass. 214 October 4, 2011– January 5, 2012 Court Below: Superior Court Department, Plymouth Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

CIVIL ACTION commenced in the Superior Court Department on January 20, 2005.

Motions for disqualification of counsel and for reconsideration were heard by Richard J. Chin, J., and a proceeding for interlocutory review was heard in the Appeals Court by Janis M. Berry, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Lee P. Alfieri for Smaland Beach Association, Inc., & others.

Robert Kraus for the defendants.

CORDY, J.

Smaland Beach Association, Inc. (Smaland), together with the third-party defendants Allan Bart- lett, Louise Johnson, Mark Johnson, Russell Johnson, William Smith, and Carol Mahoney, all of whom are directors, officers, or members of Smaland, appeal from a Superior Court judge’s order disqualifying their attorney, Lee Alfieri, from representing them in a real property dispute against Arthur and Patricia Genova (Genovas). [3] The judge disqualified Alfieri based on his conclusion that Alfieri was a necessary witness because his clients had raised an advice of counsel defense and he had assisted various witnesses in submitting errata sheets that substantively changed their deposition testimony. We conclude that the judge failed to engage a sufficiently searching review of this fact-intensive issue. Consequently, we vacate the order and remand the case for a further hearing. We also take this occasion to consider the scope of disqualification orders under Mass. R. Prof. C. 3.7 (a), 426 Mass. 1396 (1998), and to clarify the proper use of errata sheets in altering deposition testimony under Mass. R. Civ. P. 30 (e), 365 Mass. 780 (1974).

1. Background. The details of the underlying substantive dispute are not material here, although we summarize them briefly for context. In 1971, the owners of various lots in a subdivision around Island Pond in Plymouth formally incorporated Smaland to maintain a beach and related recreational facilities for its members. Smaland commenced this action in 2005 against the Genovas, two of its members whose property shares a common boundary with a beach lot owned

305 by Smaland. [4] The complaint sought to ascertain the boundaries of the Genovas’ front property line and asserted claims of encroachment onto the Smaland lot, trespass and unlawful cutting of trees, tortious interference with Smaland members’ use of a boat ramp and boat dock, and pre- scriptive easement over the Genovas’ property. The Genovas asserted counterclaims against Smaland to quiet title to the disputed areas, remove certain items from their property, and establish adverse possession of an area near and beneath their cottage. The Genovas also brought third-party claims against the officers and directors of Smaland alleging that the action brought against them constituted an abuse of process and that the conduct of the officers and directors violated fiduciary duties owed to the Genovas as Smaland members; and a third-party claim against a neighbor alleging that her retaining walls and stairs encroached onto the public road.

During the course of the lengthy litigation that ensued, the parties deposed a number of witnesses. Following their depositions, four third-party defendants and three other deponents submitted errata sheets that substantively changed their testimony. At various points in these errata sheets, the deponents wholly reversed their testimony from an affirmative to a negative response, or vice versa, struck existing testimony and replaced it with a different narrative, or added explanatory text to existing deposition testimony. [5] Although some changes carried in-depth explanations, the typical reason given was to “clarify testimony.” During the second day of their depositions, two of these deponents—both Smaland officers and third-party defendants—testified that their attorney, Alfieri, had assisted them in drafting the errata sheets.

In May, 2006, the parties filed their first joint pretrial memorandum, in which the Genovas listed Alfieri as a potential witness. At a hearing to discuss the bifurcation of the trial into nonjury and jury issues, a Superior Court judge (not the judge who entered the disqualification order) in- quired into the need to call Alfieri. Alfieri represented that he did not believe he would be called as a witness at the trial and the Genovas’ counsel did not disagree. The judge subsequently issued an order bifurcating the trial [6] and, in June, 2007, presided over the jury-waived trial, at which Alfieri was not called as a witness. The judge issued a decision in April, 2009. [7]

In advance of the jury trial on the remaining issues, the parties submitted a second joint pretrial memorandum, in which the Genovas again listed Alfieri as a potential witness. Smaland and the third-party defendants, like their adversaries, also filed various pretrial motions, including a motion to prohibit the Genovas from calling Alfieri as a witness. The day before the hearing scheduled to consider these motions, the Genovas filed their opposition to this motion, expressing a conditional need to call Alfieri as a witness. The judge, however, treated the Genovas’ opposition as a motion to disqualify Alfieri, and focused the hearing on that issue.

At the start of the hearing, the judge instructed the parties that, on his reading of the bifurcation order, only three claims would proceed to trial [8]: (1) Smaland’s trespass claim, alleging that Arthur Genova entered its property and wrongfully cut down a tree; (2) the Genovas’ trespass and vandalism counterclaim, alleging that Smaland entered their property and removed granite survey markers and large rocks; and (3) the Genovas’ adverse possession counterclaim alleging that they had acquired title to a portion of their cottage, related retaining walls, garden, and bor- dering pathway that may technically lie on Smaland’s lot. Later in the hearing, he acknowledged

306 that the Genovas’ breach of fiduciary duty claim against the third-party defendants was also appropriate for the jury trial.

After defining the scope of the impending jury trial, the judge identified two ways in which Al- fieri had rendered himself a necessary witness and heard from both parties on the disqualification issue. First, the judge accepted that the third-party defendants had raised an advice of counsel defense to the Genovas’ breach of fiduciary duty claim. [9] To the judge, if the third-party defendants invoked this defense at trial, the Genovas had a “right” to call Alfieri. Second, the judge held that, given the highly unusual nature of the errata sheets that “totally change the deposition testimony,” both the Genovas and the appellants could use Alfieri’s testimony at trial. He went on to conclude that, while the Genovas would not be permitted to question Alfieri about what he had done for his clients, they would be allowed to inquire about the creation of the errata sheets submitted for nonclient witnesses, two of whom Alfieri admitted would be called as witnesses at trial. On learning from Alfieri that at least one of these nonclient witnesses suffered from memory loss, the judge further suggested that it would be reasonable for Smaland and the third- party defendants to call Alfieri to rehabilitate that witness and, perhaps, other witnesses who might be impeached through their errata sheet changes. The judge, therefore, issued an order from the bench disqualifying Alfieri from representing Smaland and the third-party defendants, though he recognized that they would suffer some hardship as a result.

Through Alfieri, the appellants moved for reconsideration. The judge ordered that the motion be “reserved pursuant to [Superior Court] Rule 9A upon [Smaland] as they are technically without counsel.” The appellants then petitioned a single justice of the Appeals Court for relief pursuant to G. L. c. 231, § 118, first par. Discerning “no abuse of discretion or clear error of law,” the single justice denied relief. Through new counsel, the appellants again moved the judge to take action on the motion for reconsideration. The judge determined “[n]o action necessary” because the Appeals Court had affirmed his prior ruling. The appellants then brought this interlocutory appeal. We transferred the appeal here on our own motion. [10]

2. Discussion.

a. Attorney disqualification. [11] Rule 3.7 (a) of the Massachusetts Rules of Professional Con- duct, provides, in pertinent part, that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where . . . disqualification of the lawyer would work substantial hardship on the client.” [12] The primary purpose of the rule is “to prevent the jury as fact finder from becoming confused by the combination of the roles of attorney and witness.” Steinert v. Steinert, 73 Mass. App. Ct. 287, 291 (2008) (Steinert). See also comment [2] to rule 3.7 (“A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. . . . It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof”). It mitigates the potential negative perception by the public that the attorney colored his or her testimony to further the client’s case and relieves the opposing counsel of the difficult task of cross- examining his lawyer-adversary. Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94, 99–100

307 (1st Cir. 1988). See Borman v. Borman, 378 Mass. 775, 786 (1979) (Borman); Serody v. Serody, 19 Mass. App. Ct. 411, 414 (1985) (Serody).

Despite these obvious benefits of the rule, it nonetheless carries with it the severe consequence of stripping a party of chosen counsel. Because of this, judges must proceed with “deliberate caution” when considering the disqualification of an attorney. Rizzo v. Sears, Roebuck & Co., 127 F.R.D. 423, 424 (D. Mass. 1989), citing Borman, supra, and Serody, supra. They must reconcile “the right of a person to counsel of his choice on the one hand, and the obligation of ‘maintaining the highest standards of professional conduct and the scrupulous administration of justice,’ on the other.” Slade v. Ormsby, 69 Mass. App. Ct. 542, 545 (2007) (Slade), quoting Mailer v. Mailer, 390 Mass. 371, 373 (1983).

As this analysis hinges in large measure on a judge’s balancing of the respective prejudices to the parties, we review disqualification orders for an abuse of discretion. Kendall v. Atkins, 374 Mass. 320, 324 (1978) (Kendall). See Steinert, supra at 288. Yet, we must be mindful that “[d]isqualification is not required in every case in which counsel could give testimony on behalf of his client on other than formal or uncontested matters,” Byrnes v. Jamitkowski, 29 Mass. App. Ct. 107, 109 (1990), citing Borman, supra, nor is it automatically granted where a party attempts to call opposing counsel, Borman, supra at 792. Rather, our framework requires a more searching review to determine whether the lawyer’s “continued participation as counsel taints the legal system or the trial of the case before it.” Id. at 788.

To that end, judges must carefully examine the evidence before them and should consider whether the information sought from the attorney-witness can be presented in a different manner, whether the attorney-witness’s testimony would be cumulative or marginally relevant, or whether disqualification was a foreseeable outcome. See Kendall, supra at 325; Serody, supra at 414; comment [4] to rule 3.7 (“It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness”). Where the need for an attorney to testify on behalf of his client arises, judges should defer to “the best judgment of counsel and his client,” unless the attorney is “withhold[ing] crucial testimony from his client because he prefers to continue as counsel.” Borman, supra at 790. But where opposing counsel seeks to question the attorney, “[t]he matter lies differently . . . .” Serody, supra at 413. In such cases, judges must guard against the “the Canons of Ethics [being] brandished for tactical advantage,” and must prevent litigants from wielding the rule as a weapon to “maneuver [opposing counsel’s] withdrawal and to that degree unsettle the adversary.” [13] Id. at 414. Although such scrutiny typically discourages the practice of allowing a party to call opposing counsel as a witness, where the testimony sought is prejudicial to or directed against the client, “the case for judicial intervention is more powerful.” Id. at 413. See Kendall, supra at 324.

Because the judge grounded his decision in two independent courses of conduct, we explore each path to disqualification in turn. First, we recognize that an attorney may be deemed a necessary witness when his clients assert an advice of counsel defense. See, e.g., Sea Trade Maritime Corp. vs. Coutsodontis, No. 09 Civ. 488 (BSJ) (HBP) (S.D.N.Y. July 25, 2011) (permitting attorney disqualification where advice of counsel defense raised). The content of that defense requires,

308 among other things, a showing that the clients made a full and honest disclosure of material facts to the attorney and that they followed the attorney’s advice. G.S. Enters., Inc. v. Falmouth Ma- rine, Inc., 410 Mass. 262, 275 (1991). Surely, it might be reasonable to call the attorney who rendered the advice. But, just because inclusion of such testimony would be reasonable in some instances does not mean it is required in all.

When faced with disqualification stemming from this defense, a judge must still undertake the analysis discussed above, and consider whether the information sought from an attorney could be adduced through other means. See Kendall, supra at 324–325; Serody, supra at 414. Here, there is no indication that the judge conducted that inquiry, and the record before us does not enable us to do so. The Genovas have not articulated the expected content of Alfieri’s testimony, nor have they explained what it may offer beyond the testimony of the parties themselves. [14] The record is equally devoid of any reason why Alfieri must testify to defend his clients. Such strategic decisions rest with the attorney and his client, unless a judge concludes that the attorney’s failure to testify is “obviously contrary to the client’s interests.” Borman, supra at 791. Absent these additional findings, Alfieri’s disqualification on the ground that his clients have asserted an advice of counsel defense rests on speculation, which is “plainly insufficient to serve as a basis for disqualification.” [15] Steinert, supra at 290.

The second path to Alfieri’s disqualification originates in his role in drafting the errata sheets that substantively change the deposition testimony of his client and nonclient witnesses. Throughout the hearing, the judge emphasized the unusual nature of these documents. We do not disagree. Our review of the errata sheets reveals that meaningful changes were made to the underlying testimony, and their consistent use across witnesses calls into question Alfieri’s role in their creation. Yet, given the prospective uses of Alfieri’s testimony, these facts alone do not provide adequate justification for concluding that the attorney is a necessary witness.

First, in accepting the Genovas’ argument that Alfieri was needed to explain the creation of the errata sheets, the judge failed to explore whether the testimony sought would be prejudicial to or directed against Alfieri’s clients, or whether alternate sources for this information were available. Such analysis is crucial in justifying judicial intervention into the attorney-client relationship where a party seeks the testimony of opposing counsel. See Kendall, supra at 325; Serody, supra at 414.

Here, however, the judge did not engage this inquiry, and the record that was before him does not allow us to do so. [16] In the first instance, there is again no evidence of the likely content of Alfieri’s testimony, which inhibits our investigation of the potential harm it could cause his clients without steering us toward impermissible speculation. In the second, the judge’s dialogue at the hearing disregarded the likelihood that most witnesses would be capable of recalling how their errata sheets were created and the possibility that any explanation of the process may have been preserved in deposition testimony. For example, on the second day of her deposition, the witness identified as suffering from memory loss explained that she marked changes on a deposition transcript that Alfieri had provided to her and delivered those changes to him. According to the witness, Alfieri then “wrote it up in better language than what . . . I had. But I made the corrections first and brought them down to . . . Alfieri.” Perhaps this passage would serve as an adequate

309 explanation of the errata sheets for the parties to present to the jury. We do not know. The bulk of the underlying deposition transcripts was not before the judge at the disqualification hearing.

Similar flaws are apparent in the judge’s conclusion that Alfieri may have to testify to rehabilitate any witnesses impeached through their errata sheets changes, and, thus, “properly defend his client.” Through the use of the errata sheets at trial, the jury would be in a position to consider the memories of the witnesses and their ability to remember a given fact at a certain time. On the record before us, it appears that Alfieri is in no better position to speak to these issues than the witnesses themselves, nor is he better poised than the jury to judge the apparent discrepancies. In any event, the decision to call Alfieri to rehabilitate a witness, and thus testify on behalf of his clients, initially lies with him, as the attorney, and his clients. Borman, supra at 787–788. They could reasonably decide that the witnesses could overcome any impeachment without Alfieri’s testimony. Without additional findings, any decision to forgo Alfieri’s testimony does not appear to contradict the clients’ interests so dramatically as to warrant judicial intervention. See id. at 790–791.

The decision to disqualify an attorney is a difficult one with substantial consequences to the attorney’s client, particularly, as here, where the case has been litigated by the attorney over many years. As such, judges considering these motions must closely scrutinize the facts before them to determine whether a lawyer’s “continued participation as counsel taints the legal system.” Id. at 788. Given the accusations of attorney misconduct in the preparation of the errata sheets, it may be that, after further review, the judge will again disqualify Alfieri. Even with that possibility, the present order cannot stand on the record before us. Although the decision came on the eve of trial, the judge did not sufficiently analyze the factors before him, particularly in light of the narrow issues for the jury trial he proscribed. Therefore, we vacate the disqualification order and remand the case for a further hearing consistent with this opinion. [17] b. Pretrial disqualification. Although we have vacated the judge’s order, the total disqualification he imposed on Alfieri compels us to offer some guidance on the subsequent review of this issue.

By its plain language, rule 3.7 (a) prohibits a lawyer from acting “as an advocate at trial in which the lawyer is likely to be a necessary witness” (emphasis added). Unlike the rules governing disqualification due to conflicts of interest with the lawyer-witness’s current client or prior representation of the opposing party, this rule contains the limiting phrase “at trial.” Contrast Mass. R. Prof. C. 1.7, 426 Mass. 1330 (1998) (conflict of interest); Mass. R. Prof. C. 1.9, 426 Mass. 1342 (1998) (prior representation). It also focuses on a lawyer’s specific role as an advocate at that trial, thus differentiating this rule from its predecessor, which broadly prohibited a lawyer who ought to serve as a witness from participating in “the conduct of the trial” (emphasis added). Disciplinary Rule 5-102 (A), 359 Mass. 814 (1972). While the former rule could—and had been—read to encompass a lawyer-witness’s pretrial representation of his client, we are persuaded that the current rule does not. See Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94, 99 (1st Cir. 1998) (Culebras) (Rule 3.7 of Model Rules of Professional Conduct of American Bar Associa- tion [ABA], which is identical to Massachusetts rule, should not be read “as broadly prohibiting the rendition of case-related out-of-court services prior to trial”); Steinert, supra at 290-291 (rule

310 3.7 “does not limit the attorney’s involvement prior to trial”). Compare Massachusetts Bar Asso- ciation Committee on Professional Ethics Opinion No. 88-6 (1988) (concluding that Disciplinary Rule 5-102 [A] prohibited lawyer-witness from participating in pretrial activities, while recognizing that model rule 3.7, which is identical to current Massachusetts rule, was “a much less restrictive disqualification provision”) with ABA Standing Committee on Ethics and Professional Responsibility Informal Opinion 89-1529 (1989) (concluding that model rule 3.7 permits lawyer- witness representation in pretrial activities provided client consents after consultation). As such, an attorney considered to be a necessary witness may participate in pretrial proceedings, though it would be particularly prudent first to secure client consent after consultation. [18] See id.

This reading of rule 3.7 (a) adheres to its text and fulfils its underlying purposes. See Culebras, supra at 99–100. That is, because the rule strives to mitigate potential jury confusion, to avoid the difficulties of cross-examining an adversary and to diminish the appearance of impropriety where an attorney “leave[s] counsel table for the witness chair,” Serody, supra at 414, judges need only divorce the two functions—that of advocate and witness—at the trial itself. Id. at 414– 415. These concerns, however, “are absent or, at least, greatly reduced, when the lawyer-witness does not act as trial counsel, even if he performs behind-the-scenes work for the client in the same case.” Culebras, supra at 100.

Thus, were the judge to ground any future disqualification of Alfieri in rule 3.7 (a) alone, he is limited to barring the attorney’s participation at trial. [19] Any disqualification that might extend to pretrial activities must derive from a different source. [20] c. Judicial disqualification. [21] Smaland and the third-party defendants ask that we disqualify the motion judge from further involvement in the case on remand. We find nothing in the record to suggest that the judge’s “impartiality might reasonably be questioned,” and therefore decline to disqualify him. S.J.C. Rule 3:09, Canon 3 (E) (1), as appearing in 440 Mass. 1319 (2003). De- spite the appellants’ arguments to the contrary, the judge acted within his authority when he raised the issue of Alfieri’s disqualification after the opposing party signaled its conditional intention to call Alfieri as a witness. See Kendall, supra at 325. That the resulting order was adverse to the appellants does not demonstrate the required “bias or prejudice” to warrant judicial disqualification. Commonwealth v. Greineder, 458 Mass. 207, 235 (2010), quoting Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004). d. Errata sheets. Errata sheets have played a central role in the litigation among the parties, and Smaland and the third-party defendants have argued that any substantive changes contained within the errata sheets were proper under Mass. R. Civ. P. 30 (e). Although the validity of the errata sheets is not directly before us, we nonetheless take this opportunity to clarify the use of errata sheets to alter deposition testimony.

Rule 30 (e) allows that “[a]ny changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of reasons given by the witness for making them.” No Massachusetts appellate court has squarely decided the propriety under this rule of submitting substantive changes to deposition testimony through errata sheets. [22]

311 Because the Massachusetts and Federal rules are similar, it is instructive to turn to our Federal counterparts for guidance. [23] See Strom v. American Honda Motor Co., 423 Mass. 330, 335 (1996), quoting Solimene v. B. Grauel & Co., 399 Mass. 790, 800 (1987), and Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 180 (1975) (“ ‘Because the Massachusetts Rules of Civil Procedure are patterned after the Federal rules, we interpret our rules consistently with the construction given their Federal counterparts,’ . . . ‘absent compelling reasons to the contrary or significant differences in content’ “).

As courts and commentators have noted, divergent trends have emerged across the national landscape as Federal courts have grappled with this issue. See, e.g., Reilly v. TXU Corp., 230 F.R.D. 486, 487 (N.D. Tex. 2005) (Reilly); Summerhouse v. HCA Health Servs. of Kan., 216 F.R.D. 502, 504-505 (D. Kan. 2003); Macchiaroli, Rewriting the Record: A Federal Court Split on the Scope of Permissible Changes to a Deposition Transcript, 3 Fed. Cts. L. Rev. 1, 4–10 (2009). The traditional approach, adopted in the majority of Federal courts, allows any changes, whether in form or substance, clarifying or contradictory. Reilly, supra at 489-490. See, e.g., Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997); Tingley Sys., Inc. v. CSC Consult- ing, Inc., 152 F. Supp. 2d 95, 120 (D. Mass. 2001) (Tingley); Lugtig v. Thomas, 89 F.R.D. 639 (N.D. Ill. 1981) (Lugtig). To mitigate the potential for abuse under this liberal view, courts implementing this approach have allowed the original and changed answers, as well as any reasons given for the changes, to remain part of the record, Lugtig, supra at 641-642, and “reserved the right to reopen the deposition if the changes were material,” Summerhouse v. HCA Health Servs. of Kan., supra at 505, citing Tingley, supra at 120–121.

A growing minority of courts has, however, adopted a narrower interpretation of Fed. R. Civ. P. 30 (e), either restricting the rule to typographical or transcription corrections, see, e.g., Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992), or permitting clarifying, but not contradictory changes, see, e.g., Hambleton Bros. Lumber Co. v. Balkin Enters. Inc., 397 F.3d 1217, 1225–1226 (9th Cir. 2005). [24]

Given the plain language of our rule 30 (e), which encompasses “[a]ny changes in form or substance” to deposition testimony, we adopt the majority approach. Unlike the minority view, which imposes an artificial stricture on the analogous Federal rule, this scheme allows legitimate corrective changes and advances the underlying purpose of the discovery process, i.e., “for the parties to obtain the fullest possible knowledge of the issues and facts before trial.” Strom v. American Honda Motor Co., supra at 336, quoting Hickman v. Taylor, 329 U.S. 495, 501 (1947). See Reilly, supra at 490.

Yet, we do not import this expansive reading without limitations necessary to guard against ma- nipulation of rule 30 (e). First, counsel must understand and should explain to deponents that any changes they make must represent their own good faith belief, and may not be undertaken simply to bolster the merits of a case. Second, counsel must ensure that any submitted changes comply with the procedural requirements of rule 30 (e). See Lugtig, supra at 641–642. We emphasize, in particular, the instruction that a statement of reasons must accompany the change. Mass. R. Civ.

312 P. 30 (e). These reasons must be advanced in good faith and provide an adequate basis from which to assess their legitimacy; that is, they must not be conclusory. Tingley, supra at 119–120.

Like other courts employing a similar interpretation of rule 30 (e), we also adopt certain remedial measures. See Lugtig, supra at 642. First, because the text of rule 30 (e) does not require that the original answers of the deponent be struck, the original answers remain part of the record and may be read, along with the changed answers and reasons provided for the change, at trial. See id. at 641. Second, in the interest of fairness, where the deponent has made substantive changes as to significant matters on an errata sheet that, if provided during the deposition, would reasonably have triggered further inquiry, the party who took the deposition can reopen the examination for the purposes of exploring matters raised by the substantive changes in testimony and the origins of those changes. [25] Finally, if there is any indication that an attorney has exploited the rule by arranging or facilitating the submission of errata sheets for the purpose of strategic gain in a case and not to correct testimony, his conduct may be grounds for sanctions. See, e.g., Mass. R. Prof. C. 3.3, 426 Mass. 1383 (1998) (candor toward tribunal); Mass. R. Prof. C. 3.4 (a)-(d), (f), (g), 426 Mass. 1389 (1998) (fairness to opposing party and counsel).

While substantive changes to errata sheets are permitted under rule 30 (e), we caution deponents and attorneys to invoke this privilege sparingly. The errata sheet is intended as a tool to correct mistakes in deposition testimony or subsequent transcription. It is not to be used as a mechanism to inject additional facts into the testimony of a single deponent, or to align testimony across deponents.

3. Conclusion. The judge’s disqualification order is vacated and the case is remanded for further proceedings consistent with this opinion.

So ordered.

FOOTNOTES

[1] Patricia A. Genova.

[2] Louise Johnson, Mark Johnson, Russell Johnson, William Smith, and Carol Mahoney.

[3] We refer to Smaland Beach Association, Inc. (Smaland), together with the third-party defendants, as the appellants.

[4] Arthur and Patricia Genova (Genovas) were members of Smaland from September 1, 1974, until April 23, 2005, when they were expelled as beach members.

[5] Some examples of the errata sheet changes relevant to the parties’ claims include: (1) One deponent adding to an answer, “I recall seeing them walking, standing, or working in the grassy area at some point in time, but it was on a irregular basis and I never observed an established or discernible pathway.” (2) The same deponent later changed “I’d say no,” to “I’d say yes,” and “I don’t believe . . . “ to “I believe . . . .” (3) He also clarified existing testimony that Arthur Genova had cut down a tree to clear a neighbor’s view of the beach, but changed the language, “I knew

313 [the tree] was blocking,” to “I knew [the Genovas] claimed it was blocking.” (4) Another deponent struck seven lines of testimony explaining that she had answered questions from Alfieri about her history in the area and then signed an affidavit at his office and replaced it with four paragraphs of testimony emphasizing her role in making changes to and altering drafts of the affidavit before signing it. (5) That deponent also changed her testimony on five occasions to explain that, although she did not witness the construction itself, “it appeared to [her] that when the [Genovas’] railroad road tie retaining wall was replaced with the pressure-treated retaining wall, backfilling was done behind the front section of the new wall” and that, as a result, she believed that “the front yard was extended.” (6) A third deponent added nine passages to clarify testimony revolving around markings she had made on a map of the Genovas’ property and surrounding area during her deposition, repeatedly emphasizing that “[the Genovas’ wall] extended into Crescent Road.” (7) A fourth deponent added testimony “but the pathway is very recent.” (8) That same deponent also changed her answer “Yes,” to “Yes, I heard that Arthur claimed he cut down the tree because it blocked [a neighbor’s] view.”

[6] In the bifurcation order, the judge concluded that the jury-waived trial would resolve the Genovas’ counterclaim to quiet title and would determine whether the Genovas owned “the fee in a specific section of land which is located forward of their lot line and extends across a private way shown as Crescent Road,” which would require analysis of the derelict fee statute and the scope of any property rights the original common grantor had retained “in the land on the side of Crescent Road which is opposite that of the land of the parties.” It would also reach whether the Genovas had any rights, by implication, in that area and whether Island Pond, the body of water on the opposite side of the road from the parties’ lots of land, is a Great Pond.

The judge then identified as issues for a later jury trial what, if any, rights were obtained through adverse possession or prescription, the obstruction of paths, encroachment of buildings, trespass, vandalism, and cutting of trees, as well as the abuse of process counterclaim and the third-party claims for abuse of process, breach of fiduciary duty, and encroachment.

[7] The judge concluded that Island Pond is privately owned and that, although the Genovas “have fee interest across the total way of Crescent Road and to the mid-point of Island Pond,” that fee is subject to an easement, which permits “all lot owners . . . to access the waters of Island Pond, including the beach and water in front of [the Genovas’ lots] for purposes of recreation.”

[8] The judge narrowed the scope of the jury issues to those claims seeking a remedy other than, or in addition to, injunctive relief. He explained that this “ruling is based on the bifurcation order that indicates the counts for injunctive relief will be tried jury waived by somebody else.” This statement alludes to a portion of the order that reads, “Although permanent injunctive relief is a matter for the court, not the jury, it cannot be decided until all the issues, non-jury and jury, have been resolved.” As a result, the judge presiding over the first jury-waived trial refrained from considering permanent injunctive relief in that proceeding.

[9] The judge recognized at the hearing that the advice of counsel defense also went to the abuse of process counterclaim filed against Smaland and the third-party defendants. But, he reserved

314 that issue for a later jury-waived trial because it solely sought injunctive relief (as compared to the breach of fiduciary duty claim, which he permitted to proceed because it sought injunctive relief and monetary damages).

[10] Under the doctrine of present execution, an interlocutory appeal from a disqualification order may be taken immediately. See, e.g., Borman v. Borman, 378 Mass. 775, 780–781 (1979). Neither party disputes that this appeal is properly before us.

[11] The Genovas have incorporated throughout their appellate brief a conflict of interest argument regarding Alfieri’s representation of the appellants. Because this argument was not developed or presented to the judge below, we decline to consider it.

[12] The full text of the rule provides for two additional exceptions where the testimony relates to an uncontested issue or to the nature and value of legal services rendered in the case. Mass. R. Prof. C. 3.7 (a) (1), (2), 426 Mass. 1396 (1998). The facts before us do not implicate these two exceptions.

[13] The likelihood of such underhandedness is minimal in this case. The Genovas did not request Alfieri’s disqualification; they merely expressed a conditional need to call the lawyer as a witness if the appellants invoked the advice of counsel defense or if they called witnesses whose testimony implicated the changes in the errata sheets. It was the judge who identified Alfieri’s role as warranting disqualification and initiated the hearing.

[14] In their initial opposition, which the judge treated as a motion to disqualify Alfieri, the Genovas conceded the possibility that they could explore the advice of counsel defense without calling Alfieri.

[15] The assertion of an advice of counsel defense may also lead to a conflict of interest between Alfieri and his clients. Although we refrain from exploring that issue here, we note that Alfieri represents three parties in this case: Smaland as a corporate entity, its officers and directors as third-party defendants, and one of its members as a third-party defendant.

[16] The Genovas’ argument—and the record before the judge—also fails to explain adequately why Alfieri’s prospective testimony about the creation of the errata sheets would be necessary to the limited issues reserved for the jury trial. In a two-page errata sheet, one of the nonclient witnesses added a few lines about the location of a gate and fence, changed an equivocal answer to a firmer assertion that he had seen an individual use a particular ramp, and replaced a “yes” with a “no.” In an eight-page errata sheet, another provided a more detailed explanation of how she created an affidavit, added testimony regarding the Genovas’ replacing their retaining wall (and thus potentially extending their front yard) and changed a negative response to an affirmation that she had seen her brother’s affidavit (see note 5, supra).

Although this testimony would feasibly be relevant to the Genovas’ adverse possession counterclaim, which was among the four issues to be heard at the jury trial, it is unclear why its inclusion

315 would render Alfieri a necessary witness. With regard to these particular witnesses, these changes suggest little more than a lapse in memory and, as discussed more fully infra, both the underlying deposition testimony and the errata sheet changes would be available to impeach them. The Genovas, then, are free to discredit these and any other witnesses with the discrepancies they identify between the two sets of documents, even without any testimony from Alfieri.

[17] Because we are vacating the disqualification order on other grounds, we need not reach the appellants’ due process arguments.

[18] As the ABA has cautioned, “some limitations on pre-trial representation [where an attorney is designated a necessary witness] should be observed.” ABA Standing Committee on Ethics and Professional Responsibility Informal Opinion 89-1529 (1989). For instance, although the precise language of the rule does not call for disqualification in such settings, the ABA has suggested that a lawyer-witness should not represent his client at the lawyer-witness’s own pretrial deposition, nor should the lawyer-witness argue a pretrial motion where his testimony is material to the substance of that motion. Id.

[19] “Nothing herein is meant to suggest that [Mass. R. Prof. C. 3.7 (a)] condones a witness- lawyer’s visible association in the courtroom in the role of co-counsel with his client’s trial attorney.” Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94, 100 n.8 (1st Cir. 1988).

[20] We recognize that combining the roles of advocate and witness may create a conflict of interest, and note that such situations are governed by Mass. R. Prof. C. 1.7, 426 Mass. 1373 (1998) (conflict of interest), or Mass. R. Prof. C. 1.9, 426 Mass. 1342 (1998) (prior representation), not rule 3.7. See comment [1] and [5] to rule 3.7. As such, total disqualification would be available under those theories.

Similarly, once it is established that Alfieri “intends to be a witness for his client,” Rule 12 of the Rules of the Superior Court 960 (LexisNexis 2011–2012) would prohibit his participation “in the conduct of a trial . . . except by special leave of the court.”

[21] Although we proceed to decide this issue, the Genovas correctly argue that, because the appellants did not raise this issue before the judge, they are technically barred from presenting it here. See Commonwealth v. Greineder, 458 Mass. 207, 235 (2010), citing Commonwealth v. Coyne, 372 Mass. 599, 602 (1977) (“Recusal is a matter that rests in the first instance in the discretion of the judge”); Guardianship of Hocker, 439 Mass. 709, 719 (2003).

[22] Two Superior Court judges have addressed this issue, concluding that, although Mass. R. Civ. P. Rule 30 (e), 365 Mass. 780 (1974), permits substantive changes through errata sheets, the original answers may remain on the record and available for impeachment purposes, McHugh vs. Kilp, MICV1999- 00875 (Mar. 22, 2001), and that, if the changes relate to matters of substance and, “in the judgment of the opposing party . . . have a substantially detrimental effect on the discovery in the case,” the opposing party may be entitled to reopen the deposition, Chaplin vs. Quinn, WOCV2002-1492B (Jan. 13, 2004).

316 [23] Rule 30 (e) of the Federal Rules of Civil Procedure provides: “On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which: (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.”

[24] Some courts have analyzed this issue under the “ ‘sham’ affidavit rule,” which generally states that “a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Hambleton Bros. Lumber Co. v. Balkin Enters. Inc., 397 F.3d 1217, 1225 (9th Cir. 2005). See Burns v. Board of County Comm’rs of Jackson County, 330 F.3d 1275, 1282 (10th Cir. 2003); Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000). This mode of analysis goes to the use of contradictory submissions in the context of a summary judgment motion, see Lyons v. Nutt, 436 Mass. 244, 249 (2002) (conflict between postdeposition affidavit and deposition testimony may not be used to create disputed issue of fact to defeat summary judgment motion), rather than the validity of those submissions under the rules of civil procedure. Because a summary judgment motion is not before us, the relevance of these cases to our decision is limited to any general pronouncements they make on the scope of permissible changes under rule 30 (e).

[25] A judge may assess to the party whose substantive changes necessitated the reopened deposition the costs and attorney’s fees associated therewith, where fairness requires.

317 Section 3P

Getting Ahead in the Cloud*

The following is included as an advertisement example only. It does not imply endorsement of any kind by MCLE or the SJC.

318 319 320 321

322 Section 3Q

MBA Ethics Opinion 12-031 (Using Cloud Storage—Google Docs)

Summary: A lawyer generally may store and synchronize electronic work files containing confidential client information across different platforms and devices using an Internet based storage solution, such as “Google docs,” so long as the lawyer undertakes reasonable efforts to ensure that the provider’s terms of use and data privacy policies, practices and procedures are compatible with the lawyer’s professional obligations, including the obligation to protect confidential client information reflected in Rule 1.6(a). A lawyer remains bound, however, to follow an express instruction from his or her client that the client’s confidential information not be stored or transmitted by means of the Internet, and all lawyers should refrain from storing or transmitting particularly sensitive client information by means of the Internet without first obtaining the client’s express consent to do so.

Facts: A lawyer (“Lawyer”) wishes to store and synchronize the electronic work files that he creates in the course of his law practice across multiple computers and devices (e.g., smartphones, iPads, etc.) so that he can access them remotely. Some of the work files contain privileged or other confidential client information. Lawyer is considering several potential solutions to address his needs, including storing and synchronizing his electronic files remotely using a third-party service that is accessible through the Internet, such as “Google docs.” As described by Google, Google docs is a private service that permits users to store their documents and other data on Google’s servers and access that information remotely over the Internet using multiple devices and platforms. Numerous other “cloud” based storage options, such as Microsoft’s “Windows Azure,” Apple’s “iCloud,” and Amazon.com’s “S3” service, exist. The issue presented is whether it would violate Lawyer’s obligations under the Massachusetts Rules of Profes- sional Conduct to store confidential client information using Google docs or some other Internet based storage solution, and to synchronize his computers and other devices that contain or access such information over the Internet.

Discussion: Rule 1.6 of the Massachusetts Rules of Professional Conduct governs the confidentiality of client information. Subsection (a) of Rule 1.6 provides, in relevant part, that “[a] lawyer shall not reveal confidential information relating to the representation of a client unless the client consents after consultation....” The duty of confidentiality dictated by Rule 1.6 (as well as other rules) imposes upon Lawyer the obligation to avoid using means of communication with the client that pose an unreasonable risk of inadvertent disclosure to third persons.

1 MBA Ethics Opinion 12-03 was published in 2012, prior to the revision of the Massachusetts Rules of Professional Conduct, effective July 1, 2015. Please review in light of the rules as revised in 2015.

323 In this context, the question posed is whether Lawyer’s use of Google docs or another Internet based data storage service provider, which carries with it a small, but genuine risk of unauthorized access or interception, presents an unreasonable risk of inadvertent disclosure and, therefore, violates Rule 1.6(a).

The Committee on Professional Ethics previously has addressed issues of client confidentiality posed by a lawyer’s use of the Internet and remote access capabilities. For example, in Opinion 00-01, the Committee concluded that a lawyer’s use of unencrypted Internet e-mail to engage in confidential communications with his or her client does not violate Massachusetts Rule of Pro- fessional Conduct 1.6(a) in ordinary circumstances. We said, in relevant part,

[i]t is the Committee’s opinion that the use of unencrypted Internet e-mail for the purpose of transmitting confidential or privileged client communications does not, in most instances, constitute a violation of any applicable ethical rule, including Rule 1.6. The Committee reaches this conclusion primarily because it believes that both the lawyer and the client typically have a reasonable expectation that such communications will remain legally and effectively private. See, e.g., 18 U.S.C.A. 2510, et seq. (the “Electronic Communications Privacy Act”). The technological possibility that a privileged or confidential e-mail communication could be intercepted in disregard of federal law does not diminish that expectation. Oth- er standard forms of communication, including the telephone and the United States mail, also carry with them some risk of interception. Legal prohibitions on the interception of private telephone calls and letters, however, generally provide protection against unauthorized disclosure sufficient to make those means of communication reasonably secure for purposes of Rule 1.6(a). The Committee believes that, in light of statutes such as the Electronic Communications Privacy Act, the same reasoning now applies to unencrypted Internet e-mail.

Similarly, in Opinion 05-04, the Committee concluded that a law firm may provide a third-party software vendor with remote access to confidential client information stored on the firm’s computers for the purpose of allowing the vendor to support and maintain a computer software application utilized by the law firm so long as the law firm undertakes “reasonable efforts” to ensure that the conduct of the software vendor “is compatible with the professional obligations of the lawyer[s],” including the obligation to protect confidential client information reflected in Rule 1.6(a). The Committee stated that “reasonable efforts” in the circumstances would include, among other things,

(a) notifying the vendor of the confidential nature of the information stored on the firm’s servers and in its document database; (b) examining the vendor’s existing policies and procedures with respect to the handling of confidential information; (c) obtaining written assurance from the vendor that confidential client information on the firm’s computer system will only [be] utilized solely for technical support purposes and will be accessed only on an “as needed” basis; (d) obtaining written assurance from the vendor that the confidentiality of all client information

324 will be respected and preserved by the vendor and its employees; and (e) drafting and agreeing upon additional procedures for protecting any particularly sensitive client information that may reside on the firm’s computer system, to the extent necessary.

The Committee believes that the reasoning set forth in Opinion 00-01 and Opinion 05-04 generally would allow Lawyer also to use Google docs or some other Internet based data storage service provider to store confidential client information, and to synchronize data using that provider over the Internet. More specifically, the Committee believes that the use of an Internet based service provider to store confidential client information would not violate Massachusetts Rule of Professional Conduct 1.6(a) in ordinary circumstances so long as Lawyer undertakes reasonable efforts to ensure that the provider’s data privacy policies, practices and procedures are compatible with Lawyer’s professional obligations, including the obligation to protect confidential client information reflected in Rule 1.6(a). “Reasonable efforts” by Lawyer with respect to such a provider would include, in the Committee’s opinion:

(a) examining the provider’s terms of use and written policies and procedures with respect to data privacy and the handling of confidential information;

(b) ensuring that the provider’s terms of use and written policies and procedures prohibit unauthorized access to data stored on the provider’s system, including access by the provider itself for any purpose other than conveying or displaying the data to authorized users;

(c) ensuring that the provider’s terms of use and written policies and procedures, as well as its functional capabilities, give the Lawyer reasonable access to, and control over, the data stored on the provider’s system in the event that the Law- yer’s relationship with the provider is interrupted for any reason (e.g., if the storage provider ceases operations or shuts off the Lawyer’s account, either temporarily or permanently);

(d) examining the provider’s existing practices (including data encryption, password protection, and system back ups) and available service history (including reports of known security breaches or “holes”) to reasonably ensure that data stored on the provider’s system actually will remain confidential, and will not be intentionally or inadvertently disclosed or lost; and

(e) periodically revisiting and reexamining the provider’s policies, practices and procedures to ensure that they remain compatible with Lawyer’s professional obligations to protect confidential client information reflected in Rule 1.6(a).

Consistent with its prior opinions, the Committee further believes that Lawyer remains bound to follow an express instruction from his client that the client’s confidential information not be stored or transmitted by means of the Internet, and that he should refrain from storing or trans-

325 mitting particularly sensitive client information by means of the Internet without first seeking and obtaining the client’s express consent to do so.[1]

Applying its conclusions to Google docs, Lawyer’s proposed Internet based data storage solution, the Committee observes that Google has adopted written terms of service and a privacy policy for users of Google docs (see generally http://www.google.com/google-d-s/terms.html) that reference and incorporate various other Google policies. Among other things, Google represents that data stored on Google docs is “private” and “password protected,” but can be voluntarily shared by the user with others or published to the World Wide Web. The Committee further observes that Google docs and other Internet based storage solutions, like many, if not most, remotely accessible software systems and computer networks, are not immune from attack by unauthorized persons or other forms of security breaches. See, e.g., “How Safe Are Your Google Docs”, found at http://www.odesk.com/blog/2010/05/how-safe-are-your-google-docs; and “Can You Trust Your Data To Amazon, Other Storage Cloud Providers?”, found at http://www.networkworld.com/supp/2008/ndc3/051908-cloud-storage.html.

The foregoing policies, protections and resources are referenced by the Committee solely for informational purposes. Ultimately, the question of whether the use of Google docs, or any other Internet based data storage service provider, is compatible with Lawyer’s ethical obligation to protect his clients’ confidential information is one that Lawyer must answer for himself based on the criteria set forth in this opinion, the information that he is reasonably able to obtain regarding the relative security of the various alternatives that are available, and his own sound professional judgment.

This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on May 17, 2012.

[1] The American Bar Association and the bar associations of various states also have addressed the ethical implications of using Internet-based software and data storage services, either formally or provisionally. See, e.g., American Bar Assoc. Commission on Ethics 20/20 “Issues Paper Concerning Client Confidentiality and Lawyers’ Use of Technology,” dated September 20, 2010; New York State Bar Association Committee on Professional Ethics Opinion 842, dated Septem- ber 10, 2010; California State Bar Standing Committee on Professional Responsibility and Con- duct Proposed Formal Opinion Interim No. 08-0002, approved for public comment in August 2010; Iowa State Bar Association Committee on Ethics and Practice Guidelines Opinion 11-01, dated September 9, 2011; and North Carolina State Bar Ethics Committee Proposed 2011 Formal Ethics Opinion 6, dated October 20, 2011.

326 Section 3R

Revised Massachusetts Rules of Professional Conduct

A. SJC Announcement of Revised Rules

B. Report of the Standing Advisory Committee

327 Supreme Judicial Court Adopts Revised Rules of Professional Conduct 1.0–3.7, 3.9–5.1, 5.3–6.2, and 7.1–8.4

The Justices of the Supreme Judicial Court have adopted substantial revisions to the Rules of Professional Conduct (Mass. R. Prof. C.) contained in SJC Rule 3.07. These revisions are announced in the Justices' Order dated March 26, 2015, and will be effective on July 1, 2015.

These revisions are based on the Justices' consideration of recommendations of the Court's Standing Advisory Committee on the Rules of Professional Conduct ("Committee"). At the request of the Justices, the Committee examined the current Massachusetts Rules of Professional Conduct in light of amendments to the American Bar Association's Model Rules of Professional Conduct adopted following the work of the ABA Ethics 2000 Commission and the ABA Com- mission on Ethics 20/20. In July 2013, with the Court's permission, the Committee published its proposed rules for comment. Following careful review of the comments received, the Commit- tee on May 14, 2014 submitted to the Justices revised Proposed Rules of Professional Conduct. This proposal included amendments to all of the Massachusetts Rules with the exception of Rules 5.2, 6.3, 6.4, 6.5, and 8.5.

On October 29, 2014, the Justices announced their decisions concerning Rules 1.0–1.5, 1.7–1.9, 1.11–3.4, 3.6, 3.7, 3.9–5.0, 5.2, 5.4–6.2, 7.1–7.5, and 8.1–8.4. The Justices also announced that they would hear argument on certain issues pertaining to Rules 1.6, 1.10, 3.5, 5.1, and 5.3 on De- cember 18, and that they were deferring action on Rule 3.8. The Justices' decisions on Rules 1.6, 1.10, 3.3, 5.1, and 5.3 are reflected in the Revised Rules adopted today and summarized in the Report of the Standing Advisory Committee on the Adoption of Revised Rules of Professional Conduct effective July 1, 2015.

The following documents are available for review on the Supreme Judicial Court website:

• The Order of the Justices adopting revised Rules of Professional Conduct 1.0 –3.7, 3.9–5.1, 5.3–6.2, and 7.1–8.4.

• Revised Mass. Rules of Professional Conduct 1.0–3.7, 3.9–5.1, 5.3–6.2, and 7.1–8.4.

• A redlined version of the Revised Mass. Rules of Professional Conduct marked to show changes from the current Massachusetts Rules of Professional Conduct.

• A redlined version of the Revised Mass. Rules of Professional Conduct marked to show changes from the American Bar Association Model Rules of Professional Conduct.

• The Report of the Standing Advisory Committee on the Adoption of Revised Rules of Pro- fessional Conduct effective July 1, 2015. This Report summarizes key changes in the rules as adopted.

• The Committee's Report dated July 1, 2013 and its Supplemental Report dated May 14, 2014, describing to the Committee's proposed revisions to the rules. The Supreme Judicial

328 Court did not adopt all of the Committee's recommendations, but these reports provide guidance on the rationale for many of the adopted revisions.

The Justices of the Supreme Judicial Court appoint the members of the Standing Advisory Committee on the Rules of Professional Conduct. The Committee is chaired by John L. Whit- lock, Locke Lord LLP. The other members are Carol Beck, Committee for Public Counsel Ser- vices; Professor R. Michael Cassidy, Boston College Law School; Timothy J. Dacey, Goulston & Storrs, P.C.; Henry C. Dinger, Goodwin Procter LLP; Erin K. Higgins, Conn Kavanaugh Rosenthal Peisch & Ford, LLP; Professor Andrew L. Kaufman, Harvard Law School; Elizabeth Mulvey, Crowe & Mulvey LLP; Professor Andrew M. Perlman, Suffolk University Law School; James B. Re, Sally & Fitch LLP; Regina E. Roman, Sugarman, Rogers, Barshak & Cohen, PC; Professor Constance Rudnick, Massachusetts School of Law; and Massachusetts Bar Counsel Constance V. Vecchione, Office of Bar Counsel.

Source: http://www.mass.gov/courts/case-legal-res/rules-of-court/rule-changes-invitations- comment/sjc-adopts-revised-rules-of-professional-conduct-march-2015.html

329 330 331 332 333

334 Section 3S

Prospective Client

1. What is your gut reaction about the person?

2. Has this person had prior counsel?

3. Does this person try to tell you that she/he knows the law or how to practice law?

4. What is her/his focus—winning at all costs; it’s the principle .... !

5. Can you take on the matter—time resources and money?

6. Is it within competence and expertise or can you associate with outside counsel?

7. If co-counsel—get all disclosures and deal with it in the fee agreement.

8. Fees discussion and costs/expenses discussion.

9. Fee agreement, in writing.

10. Have you given client enough time to ask questions?

11. Have you managed your time well—don’t give away the store before the agreement is signed and retainer obtained?

12. Retainers—Not non-refundable?

13. What is your telephone policy?

14. Explain litigation, including discovery if relevant, and establish a scope of engagement, particularly if limited. Memorialize the terms and scope of engagement in writing.

15. Have you AVOIDED making a guarantee—This is a good case! What do you think our chances are?

16. How did client get to the firm? Send thank you to referrer.

17. Thank client for coming to see you and letting you assist them?

18. Bill EVERY month. Keep contemporaneous time even on contingent, flat fee or hybrid fee matters.

335 Section 3T

Documentation

1. Do you use fee agreements/engagement letters?

2. Do the files contain a copy?

3. Worth considering that the engagement letter state that, if we don’t hear from you within 30 days, we are NOT engaged?

4. Include in fee agreement disposal/return of file policy after matter is over?

5. Non-engagement letters:

a. state clearly no attorney-client relationship created

b. be aware of any statute of limitations

c. recommend that other counsel be sought

6. Limited advice or scope letters

7. “ALA” Letters

8. Document telephone calls, meetings, conferences with clients and others

9. Second person review of all letters going out

10. Chronological files—incoming and outgoing

11. Work Files—so originals stay pristine

12. Paper trails so disputes don’t rely on memory later

13. Make sure staff are accountable to these tasks

14. Disengagement letters

336 Section 3U

Telephone Procedures

1. What is impression callers get when they call the office—who answers, the tone, how long it takes to answer, is it welcoming, the info given—also, make sure NO legal advice is given by receptionist and that NO attorney-client relationship is created by receptionist or staff—see DeVaux v. American Home Assurance.

2. Voice mail use.

3. Do you tell clients about the way calls are handled and the practice of returning calls?

4. What is the return call practice? Within 24 hours; if going to be out, have secretary or receptionist tell the caller.

5. Emergencies.

6. Ask clients to honestly state whether the matter is urgent or call wait a return call and try define emergency

7. How are telephone calls charged? See fee agreement

8. How do you document telephone calls—in billing program or bills?

337 Section 3V

Confidentiality

1. Do you have a confidentiality policy?

2. Do you discuss it with everyone in the office, staff in particular?

3. Do you remind incoming and departing employees of the Las Vegas Rule:

“Everything you say and hear here stays here”

4. Do you make sure that no client files are left in common areas?

5. Is the reception area set up so nothing confidential is overheard?

6. Are vendors and delivery folks monitored when they enter the space?

7. When meeting with clients, is it in an empty conference room and not in your office?

8. Are fax and other machines away from client or visitor access?

9. How do you handle

a. Cell phone calls

b. Emails

c. Texts

10. Do client files ever leave the office? See, Massachusetts Data Privacy laws.

338 Section 3W

Conflict Checks

1. Conflicts checks a. Tell prospective client about conflicts checks b. Don’t take too much information c. Do not fail to do one. d. The reason is to i. eliminate potential for conflict with existing client ii. eliminate potential for detrimental reliance if you announce that there is no A/C Rel until conflict check is done and fee agreement is signed. iii. identifies potential for future conflicts.

2. Who a. What names do you collect and search? i. All person and entities involved incl banks, known witnesses, counsel, experts, corporate family—shareholders, members, officers, directors, agents or employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the organization to make decisions about the course of the litigation—partners, LPs, association members, managers, general managers, estate fiduciaries, heirs, beneficiaries, assigns, spouses, DPOA, space sharers, of counsel, senior counsel, multi state offices, affiliates, etc ii. Recheck conflicts during the case for new folks iii. Joint representations have special rules—see 1.7 comments

3. Methodology doesn’t matter a. X-1, cards etc.

4. Imputed conflicts—See BBA Op 2004-1 for laterals, etc.

5. Conflict waivers—another world altogether a. Non waivable conflicts—CVV b. Screens

339 BRECHER, WYNER, SIMONS, FOX & BOLAN, LLP 100 Wells Avenue Newton, Massachusetts 02459 (617) 614-1500

CONFLICTS CHECK—PERSONAL AND CONFIDENTIAL

Responsible Attorney:

Date:

Prospective/Existing Client:

Prospective Opposing Party:

Opposing Counsel:

Other Persons, Parties or Witnesses:

Others:

Matter:

Our File reference:

(If entity, list Manager for LLC and member/owners, partners for LLP, general and limited partners for LP, each partner for partnerships, shareholders for PC and corporations, beneficial or other interest holders for nominee trusts, trustee for trusts)

Please review above-listed information and indicate below whether you might have any information which would give rise to an actual or potential conflict. If you have any such information, please note it below and inform Managing Partner promptly.

Attorney/Staff No Conflict Conflict Issue Attorney/Staff No Conflict Conflict Issue

340

341 342 343 344 345

346 Section 3X

Outline of Massachusetts Legal Malpractice Law

In any legal malpractice action, therefore, these questions should be asked in the following order:

(1) Did an attorney-client relationship exist?

(2) Did that relationship require the attorney to perform a particular duty or adhere to a certain standard of care?

(3) Did the attorney breach that duty or fail to adhere to that standard of care?

(4) Did the client sustain damage?

(5) Was that damage proximately caused by the attorney’s breach of duty or failure to adhere to that standard of care?

An attorney client relationship is one in which a

a. Person seeks advice or assistance from a lawyer as a lawyer

b. The advice or assistance is within the lawyer’s professional competence

c. The lawyer gives the desired advice.

Duties are only owed to the client, except in rare circumstances in which non-clients are put into eth category of clients because of an implied relationship, one created by estoppel or one created by detrimental reliance.

Since the duty is owed only to the client, you must look to see who is the client to whom the duty is owed.

347 Section 3Y

24 Top Ten Rules of the Road

In our representation of lawyers and law firms, a repetitive theme is, as they say, remember what you learned in Kindergarten. In that spirit, there are overarching “rules” of the road that need to be attended to—starting from alarm bells on whether to undertake a matter, who is your client (an enormous problem in real life), what is the scope of your engagement (how broad or limited), is there a clear fee arrangement and how do you extricate yourself at the other end. For your reading pleasure, culled from our experience and years of reading “to do lists” from many sources, please see the following sample Rules of the Road:

Prospective Clients

• Avoid prospective clients whose expectations, demands, “all-knowingness” gives you pause.

• Avoid matters that arrive at your door too late for you to be contemplative. Said another way, if you have to rush to rescue a claim, you may step over the cliff before you realize it.

• If something doesn’t seem right, run it by a friend, colleague or other trusted person before you undertake a representation. Do NOT ignore red flags, bright lights, bells going off.

Conflicts

• Conflicts checks!!!! The failure to do them will come back to bite you some day.

Non-Engagement/Limited Engagement

• If you do not undertake to represent someone, confirm the non-representation in writing, whether by email or letter.

• If you are undertaking a limited scope of engagement (just prepare the loan documents and do the closing), is it really limited or is the client expecting you to run title, etc. Have you taken the time to memorialize the limited scope? If you don’t, call me when the Board of Bar Overseers or malpractice claim is filed!

348 Fees and Bills

• Think long and hard about undertaking a matter in which the amount in issue is less than the realistic costs of conducting the litigation. If a $25,000 claim is going to cost $20,000 to litigate, you are going to lose money, the client is going to be furious and someone will complain.

• Talk about fees. Do not avoid the subject. If someone is reluctant or unable to pay up front, why is it going to get better down the road? (We are not talking about contingent or startup situations, of course.)

• If you agree to be retained, put it in writing. As Rule 1.5 states, “the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.”

• Make sure that the scope of the engagement is clear and defined from the beginning. (Did I mention this before??)

• Bill monthly. Make the bills clear and use lots of “action” verbs.

• If you are not being paid, do not walk away, fail to show up or withhold services. See “Getting Out” below.

Getting In: Representations, Planning and Doing

• If you make a promise, can you keep it? Since you probably cannot, don’t make it.

• If you guarantee a result, can you achieve it? Since you probably cannot, don’t do it.

• Avoid placating clients with claims that they will achieve a “good result”.

• Lying for any reason will come back to haunt you! (“Of course, we filed the extension.”)

• Spend time determining whether the facts and the law provide a good faith basis BE- FORE filing suit. Therefore, don’t promise to file suit when you are not sure if you will have a good faith basis to do so.

• Consider having an expert witness on board as early in the case as possible (if one is going to be needed) to substantiate the basis for claims to be made.

• Keep an accurate calendar, with ticklers for upcoming dates, and make sure that a second person double checks it.

349 • If you don’t want or cannot handle a matter, tell that client (or prospective client) that you want to refer it out. Make sure that the person referred to is competent. If you intend to seek a referral fee, it must be in writing signed by both counsel and the client before the referral is made. See, Rule 1.5 and Saggese v. Kelly, 455 Mass. 434 (2005).

Accounting

• The bane of all lawyers’ existence is keeping bank and accounting records straight. But, take the time to set up IOLTA records correctly, make sure they are reconciled no less than every 60 days and make sure that you enter data so that you can track income and outgo for each client and each matter in “subaccounts”. And, do not forget to maintain a small separate “subaccount” for the office within the IOLTA account to cover bank or related fees in case there is a charge to the account for a bounced or returned check.

Getting Out

• If you are not being paid, do not walk away, fail to show up or withhold services. See Rule 1.16. If you are involved in a matter before a tribunal (court or administrative agency, for ex.) you would need to file a Motion to Withdraw. If you are involved in a transactional matter, send a notice in writing that you are withdrawing and please invite the client to note deadlines of which you are aware. Termination letters are an “art form” and should be carefully drafted.

• If you do file a Motion to Withdraw, limit the text of the motion to a disclosure that there are “irreconcilable differences between you and the client.” Refrain from telling tales about the client since anything you disclose of substance is a breach of confidentiality and the client will see it as a betrayal.

• Do not go into business with a client. (A rare exception is taking stock in a start-up company, but even that occurrence has substantial risk and conditions attached.)

350 Section 3Z

I Never “Met A Data” I Didn’t Like...

“Metadata” is the electronic subtext contained in computer generated documents. It can contain the properties of a document, including authors’ names (past and present), prior versions with revisions, the “tracked” changes, hidden text, and comments. If you send a Purchase and Sale Agreement electronically, a recipient can “reverse engineer” the document and find all of the above if it has not been removed from the document. It would certainly not be beneficial to the client if the other party were to see that the Sale Price or a pertinent condition of sale had been revised in a prior draft.

So, what are the risks related to metadata, how are the risks addressed, and how should we plan and respond?

1. There is a Duty Not to Disseminate Metadata

Many states generally agree that, “outside of a discovery/subpoena context,” attorneys sending electronic documents have an ethical duty to take reasonable care not to disclose their clients’ secrets and confidences. See, e.g., D.C. Op. 341; Ala. Formal Op. 2007-02; Md. Ethics Dkt. No. 2007-09. Although the degree of care required depends heavily on the nature and sensitivity of the particular information, lawyers must take “practical measures” to purge metadata “where appropriate to prevent the disclosure of confidential information.” Me. Op. 196; Ariz. Ethics Op. 07-03. Lawyers should also take reasonable steps to purge metadata when sending electronic documents, including “scrubbing the documents to ensure they are free of metadata.” N.Y. County Lawyers’ Ass’n Op. 738. In some jurisdictions, lawyers who are “ignorant of technology relating to metadata” are required to “obtain competent computer support” to comply with their ethical obligations. Colo. Ethics Op. 119.

2. Risks of Disclosure

The risk at issues is inadvertent disclosure of confidential or privileged information “the disclosure of which would be detrimental or embarrassing to the client,” such as “editorial comments, strategy considerations, legal issues raised by the client or the lawyer [and] legal advice provided by the lawyer.” See N.Y. Op. 782.

351 3. Consequences of Disclosure

The consequences of the risk are manifold, including (a) a fight over the use of the metadata and whether attorney client privilege or confidentiality has been waived; (b) the risk of a malpractice suit being filed for negligence, breach of confidentiality and fiduciary duty among other claims, and (c) the risk of a Board of Bar Overseers complaint being filed for violation of Rule 1.6 (confidentiality) among other claims.

4. How Massachusetts and Other States Treat Disclosure a. What’s Yours Is Mine

The ABA has taken the position that it was not dishonest for a lawyer to take active steps to review embedded data that had been inadvertently sent by another lawyer. Their view is that the duty of zealous representation permits one to look. There is no additional duty to the sending lawyer, apart from the duty to maintain confidentiality of client information under Rule 1.6. Without an agreement between the sending and receiving lawyer, the receiving lawyer can “mine” for data. Thus, ABA Op. 06-442 expressly concludes that mining for metadata is not an ethical violation, “thus placing the onus of preserving the confidentiality solely on the sending attorney.”

The Maryland Bar follows the ABA view, but also notes an “ethical obligation to take reasonable measures to avoid the disclosure of confidential or work product materials” embedded in electronic documents. And, they do not require that the receiving lawyer notify the sending lawyer that there may have been inadvertent disclosure of information, even though one should “communicate with his or her client concerning the pros and cons of whether to notify the sending attorney and/or to take such other action which they believe is appropriate.” b. What’s Yours Is Mine, Unless I Told You Not To Look.

Next, attorneys receiving documents outside the discovery setting may electronically search for metadata, unless they know the metadata were inadvertently disclosed. The District of Colum- bia Bar opined that “[a] receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent.” D.C. Op. 341 (2007).

The New York Bar said that a receiving lawyer “may not ethically take advantage of a breach in [an opposing] attorney’s care by intentionally searching the metadata.” N.Y. County Lawyers’ Ass’n Op. 738. Specifically, in New York, a receiving attorney may not search metadata ”with the intent to find privileged material or if finding privileged material is likely to occur from the search.” Id. (emphasis added).

The Alabama and Arizona Bars said that a “receiving lawyer also has an obligation to refrain from mining an electronic document” and “a lawyer who receives an electronic communication

352 may not examine it for the purpose of discovering the metadata embedded within it.” Ala. For- mal Op. 2007-02; Ariz. Ethics Op. 07-03.

The Maine and Florida Bars prohibit a recipient from reviewing metadata in an effort to obtain confidential information that the recipient should reasonably know was not intentionally communicated. Me. Op. 196; Fla. Ethics Op. 06-02.

The West Virginia Bar opined that a receiving attorney should not review the transmitted information if the attorney has actual knowledge that it was inadvertently disclosed; instead, the receiving attorney should contact the “sending lawyer to determine whether the metadata includes work-product confidences.”

The New Hampshire Bar found that Rule 9.4(b) imposes an obligation on the receiving attorney not to review or mine for metadata if inadvertently sent, which it is presumed to be, and shall promptly notify the sender and not examine the materials.

The Colorado Bar follows a similar approach unless the recipient “knows or reasonably should know” that the metadata contains or constitutes confidential information, in which case that lawyer must contact the sending attorney and attempt to resolve the matter.

c. We’re Not Sure, So Be Careful.

The Pennsylvania Bar lets the receiving lawyer use his/her discretion whether to review metadata on a “case-by-case” basis, keeping in mind duties under Rules 1.1-1.4, which includes zealous representation. While not “carte blanche to mine for metadata”, the receiving lawyer: “(a) must then determine whether he or she may use the data received as a matter of substantive law; (b) must consider the potential effect on the client’s matter should the lawyer do so; and, (c) should advise and consult with the client about the appropriate course of action under the circumstances.” http://web2.westlaw.com/result/documenttext.aspx?mt=Massachusetts&db=ETH- TP&eq=Welcome%2fMassachusetts&ss=CNT&scxt=WL&rp=%2fWelcome%2fMassachusetts %2fdefault.wl&cxt=DC&fmqv=c&cfid=1&service=Search&rltdb=CLID_DB11268313214221 &utid=1&rlti=1&cnt=DOC&query=METADATA+%2f250+MALPRACTICE&vr=2.0&method =TNC&sri=247&fn=_top&origin=Search&rlt=CLID_QRYRLT93705313214221&sv=Split&n= 5&sskey=CLID_SSSA19284313214221&rs=WLW13.01 - FNF44355907133

d. Where Does Massachusetts Come In?

Massachusetts has not directly addressed the issue, but the issue of the inadvertent transmission of confidential information (in the days “before” metadata” was well known), was somewhat determined in Purcell v. Dist. Att’y for Suffolk Dist., 676 N.E.2d 436 (Mass. (1997) holding that certain disclosed information even though no longer confidential was still privileged and so in- admissible at trial. There is no Rule of Professional Conduct directly on point, but Rules 1.6 and 4.4 will be brought to bear. The MBA Ethics Committee advised that a lawyer should represent a client “zealously within the bounds of the law” and should, therefore, refuse to return the materi-

353 al, even when a claim of privilege is made. The lawyer should retain the material and let the court sort it out. Op. 99-4. But, in Mira, Inc. v. O’Brien, Mass. Super. Ct. No. 02-5545-H, 11/3/03, 2003 Westlaw 22283384, now-Justice Gants ruled that privilege had not been waived, but the attorney was permitted to retain the privileged letter, to depose the author about it, and if it appeared “that the inadvertently disclosed letter contained information that established the falsity of the testimony at trial, … to approach the Court at sidebar and ask permission to use the privileged letter to impeach the purported false testimony, much as a prosecutor may use a suppressed confession to cross-examine a defendant who testifies at trial and offers evidence contrary to his confession.” (Massachusetts has generally applied a rule of waiver of privilege that asks whether the person who sent the material took “adequate steps … to ensure” the confidentiality of the material that was nevertheless inadvertently released. See, In re Reorganization of Electric Mutual Liability Ins. Co., Ltd. (Bermuda), 425 Mass. 419, 423 (1997).

5. Prophylactic Planning and Remedial Steps

Given the duty to take care before sending,

1. Scrub or protect documents first.

2. Inform clients not to disseminate electronic versions of documents in “Word” format to anyone other than counsel.

3. Save and send a document in “pdf” format after having scrubbed the “Word” version.1

4. Consider confidentiality agreements and protective orders that include specific language that the recipient will not search for metadata and will return to the sender any document or any document with metadata, inadvertently sent.2

5. Consider doing a search for key terms to make sure that names or information that you would not want the “other side” to see are removed. For example, if you are reusing a form (and this happens a lot), make sure that the Jones P+S is not copied verbatim for the Smith P+S without removing all of the references to Jones and the metadata as to that document.

6. Many lawyers send along emails chains without first checking to remove your own client’s email address and other protected information such as prior content.

7. Place a disclaimer on all material communications that the documents are privileged, that no consent is being given to search for metadata or other inadvertently delivered information.

1 I recognize that there are pdf de-coder programs, but once a document is scrubbed and saved in pdf format, the metadata is not likely to be recovered at the other end. Regardless, if you have taken steps to scrub and convert to pdf format, those steps would, in my view, be reasonable. 2 The law on inadvertent disclosure is related to the metadata issue and is similarly quite divergent depending on the jurisdiction.

354 8. If the “horse has left the barn” when you learn of the inadvertent delivery, send an immediate request/demand to preserve confidentiality, a statement that privilege is not being waived and a request/demand to return the document immediately without saving a copy.

9. For litigation purposes, produce a privilege log immediately of the inadvertently delivered documents.

10. Propose other reasonable ways to rectify the inadvertent disclosure and, if need be, seek recourse from the Court on an emergency basis.

In 2002, the ABA added paragraph (b) to Model Rule 4.4 that a lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. Massachusetts has not yet adopted that rule.

The ABA has, for many years, taken the position that a lawyer who receives such information “should refrain from examining the materials and notify the sending lawyer.”

DC and Oregon Ethics Committees concluded that where “the receiving lawyer knows of the in- advertence of the disclosure before the documents are examined, the documents must be returned and the use of the inadvertently distributed information will be considered fraud in violation of Rule 8.4 (DC) and conduct prejudicial to the administration of justice (OR).

Because there is a wide variation in the substantive law governing inadvertent disclosure,3 the rule takes no position on “whether the lawyer is required to take additional steps, such as returning the original document, [or] … whether the privileged status of a document has been waived.” Comment [2] But three states (Arizona, Louisiana, and New Jersey) of the eight that have adopted the new ABA rule have added a requirement that the receiving attorney stop reading the document as soon as its nature is (or should be) understood. (The three states have slightly different

3 The three rules applied are discussed in Judge Young’s scholarly opinion in Amgen Inc. v. Hoechst Marion Rous- sel, Inc., 190 F.R.D. 287, 290 (D. Mass. 2000): (1) “Strict accountability,” sometimes called the “traditional rule”—The privilege disappears as soon as the privileged material has been revealed, no matter how the revelation took place. Publication even of stolen materials destroys the privilege. (2) “Never waived”—The document is still privileged. Only a conscious decision by the holder of a privilege can waive it. No error, however negligent, will suffice. (3) That delight of litigators everywhere, and the rule applied in Massachusetts, the “middle ground”—Did the person who sent the material take “adequate steps … to ensure” the confidentiality of the material that was nevertheless inadvertently released? In re Reorganization of Electric Mutual Liability Ins. Co., Ltd. (Bermuda), 425 Mass. 419, 423 (1997). This approach may focus less on traditional rules of waiver and more on whether a lawyer “has acted in such a way as to disentitle the client from invoking the privilege. See International Oil, Chem. & Atomic Workers Local 7-517 v. Uno-Ven Co., 1790 F.3d 779 (7th Cir. 1999) (noting that a ‘waiver’ of the privilege is sometimes found ‘in order to punish the person claiming the privilege for a mistake’).” Capra, Mis- taken Disclosure of Privileged Information, New York Law Journal, January 11, 2002.

355 formulations as to when the receiving lawyer should stop reading.) In addition, Louisiana and New Jersey require that the receiving attorney return the document on demand; Arizona requires only that the sending lawyer be given time to “take protective measures.”

Since Massachusetts has not adopted the new Model Rule, it does not provide us with any guidance. What is a Massachusetts lawyer to do when privileged information inadvertently appears? Let’s consider your options.

1. Do you have to notify the sending lawyer that you have received the letter?

Almost certainly, yes. At least, every decision and ethical opinion that has addressed the question has asserted that the receiving lawyer must (or should) notify the sending lawyer. (The question did not arise in MBA Opinion 99-4 because the inquiring lawyer had already given notice before contacting the ethics committee.) As discussed above, some ethics committees have opined that failure to give notice is a violation of the Rules of Professional Con- duct. Even if it is not, failure to give notice exposes the receiving lawyer to the risk of disqualification and sanction by the court.

2. May you read the letter and the memo?

This is more difficult to answer. The cases and ethical opinions that require a lawyer to stop reading analogize the discovery of inadvertently-disclosed material to discovery of a file left unguarded on counsel table or of a briefcase left behind. E.g., ABA Formal Opinion 92-368 (1992)4 It is clearly wrong to pry into an unguarded file or a forgotten briefcase. See Matter of Ebitz, 8 Mass. Att’y Disc. R. 77 (1992) (Dishonesty in violation of Mass. R. Prof. C. 8.4(c) and conduct prejudicial to the administration of justice in violation of Mass. R. Prof. C. 8.4(d); six-month suspension)

Is it equally wrong to read material provided by mistake? A lawyer may learn of the mistake in many ways. The sending attorney may discover the error and request return of the materials before they have been read. Equally, the nature of the documents may be such that it is clear on their face that they are privileged. See State Compensation Ins. Fund v. WPS, Inc., 70 Cal. App. 4th 644, 655 (Cal. App. 1999) (“claim summary forms, which by design and markings are clearly identifiable as containing confidential attorney-client communications”) In such circumstances, you should refrain from reading the privileged document or should stop reading until the question is resolved. You can either contact the sending attorney to verify that the document was sent intentionally or present the dispute to the court.

Of course, it will often be the case (as it was in MBA Opinion 99-4) that the receiving attorney reads the document before realizing that it is privileged. Equally often perhaps, the realization will take place part way through the reading. An attorney who encounters what seems to be a

4 On October 1, 2005, the ABA withdrew Opinion 92-368 because it conflicted with amended Model Rule of Pro- fessional Conduct 4.4(b), which is discussed below. ABA Formal Opinion 05-437 (2005)

356 discussion of wrongdoing—concealment of a witness, say, or the submission of false evidence— will realize that the document was sent to him or her by mistake. Must the attorney stop reading as soon as this realization strikes? There is no clear authority so requiring. There is at least one case, Mira, Inc. v. O’Brien, Mass. Super. Ct. No. 02-5545-H, 11/3/03, 2003 Westlaw 22283384, that may be authority to the contrary.

In Mira, the receiving lawyer appears to have realized that a letter provided to him in discovery was privileged before he read it. The letter was from his opponent’s chief executive officer and addressed to the corporation’s attorney. The receiving attorney “informed Mira’s counsel of its inclusion in the document submission and of [his] position that Mira’s attorney-client privilege had thereby been waived … [and] moved to compel Mira to produce all its otherwise privileged attorney-client communications.” Judge Gants characterized the receiving attorney’s reading of the document as “quite proper.” And reading the letter produced a substantial benefit for the attorney and his client. Although the court ruled that the privilege had not been waived (applying the “middle” rule; see footnote 3, above), the attorney was permitted to retain the privileged letter, to depose the author about it, and if it appeared “that the inadvertently disclosed letter contained information that established the falsity of the testimony at trial, … to approach the Court at sidebar and ask permission to use the privileged letter to impeach the purported false testimony, much as a prosecutor may use a suppressed confession to cross-examine a defendant who testifies at trial and offers evidence contrary to his confession.”

Contrast Rico v. Mitsubishi Motors Corp., 10 Cal. Rptr. 3d 601 (Cal. App. 2004), review granted, in which the court disqualified an attorney who had read and used privileged material despite his claim that the privileged material showed that the defense experts were lying. “Once the court determines that the writing is absolutely privileged, the inquiry ends. Courts do not make exceptions based on the content of the writing. Unlike with the attorney-client privilege, there is no crime-fraud exception to the attorney work product rule. The absolute attorney work product privilege is just that, absolute.” Id. at 616

In our increasingly-automated world, inadvertent disclosure is only a click away. It seems inevitable that the problem will increase, particularly in large and complex discovery cases. Many lawyers have found it prudent to stipulate in advance to “claw-back” agreements providing that material sent by mistake will be returned. See Adams & Tuohey, “Clawback Agreements Help Protect Privileged Documents,” NY Law J., February 2, 2004. Without such an agreement, the result is much less certain. Prudence suggests, however, that privileged material sent inadvertently should be returned without examination when that is feasible. The contrary view of MBA Opinion 99-4 is certainly a minority view and one that has been disavowed by the ABA. (See Comment [3] to Model Rule 4.4(b), which takes the position that a lawyer may return a document unread without violating the duty of zealous representation.) The majority view supports protection of privilege and treating other lawyers as we would have them treat us.

357 Section 3A2

Discipline and Malpractice Standards ... When Rules Catch Up with Reality (“World Series” Edition)

Big Papi or Big Brother? Either way, the hammer is coming down. No more “Luddites Are Us” anti-computer store. Massachusetts Rule of Professional Conduct 1.1 states that a “lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Fair enough.

Is it implied within the rule that a lawyer must have sufficient technological knowledge to be in compliance with that Rule? The ABA does not think so, because it recently adopted a new Comment 8 to Rule 1.1 that states as follows:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Massachusetts has not yet adopted Comment 81 and, as with all rules of professional conduct, the Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and Scope of the Rules provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative. Many of the Comments use the term “should.” Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. If one is not technologically savvy enough to comply with the “requisites” under the Rule, and an error occurs, will that be sufficient for a malpractice plaintiff to demonstrate that a violation of that rule exists and, therefore, may be some evidence of the attorney’s negligence? To our knowledge, no such case has yet arisen in Massachusetts. But, with data privacy laws and e-discovery already in play, an additional guidepost is now on the landscape.

The risks are manifold - not only the potential for data being compromised, hacked or disseminated inadvertently thus violating Rule 1.6 and confidentiality, but also the more basic change in standard for not being computer savvy enough to function sufficiently to “keep up”. E-discovery is now contained within state court procedure rules. Incremental or seismic, cultural changes become rules changes which become standards of care. The risks extend to both disciplinary and

1 After the publication of this article, Massachusetts has since adopted Comment 8, effective July 1, 2015.

358 malpractice exposure. In Smith v. Lewis, 530 P.2d 589. 595 (Cal. 1975), the Court noted that “an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem”. In 1984, an article appeared with the title “Legal Malpractice: Does the Lawyer have a Duty to use Computerized Research?” Laura A. O’Cornell, 35 Fed. Ins. Counsel Q. 77 (1984). In Fiorentino v. Rapovort, 693 A.2d 208, 212 (Pa. Super. Ct. 1997) the Court stated that an “attorney will be deemed ‘negligent’ if he or she fails to possess and exercise that degree of knowledge, skill and care which would normally be exercised by members of the profession under the same or similar circumstances”. The 9th Circuit noted that that an attorney could have easily found a case by using LEXIS (Golden Easle Distrib. Cory, v. Burroughs Corp., 103 F.R.D. 124, 129 (N.D. Cal. 1984). rev’d, 801 F.2d 1531 (9th Cir. 1986)). The Federal District Court in Maryland noted in Massey v. Prince Georse’s County. 918 F. Supp. 905, 908 n. 4 (D. Md. 1996), chastised an attorney for not finding relevant information via a WestLaw search.

The risks have been extant for some time. And, now a possible extension of the standard of care is at the door. As they say in Paris computer cafes: It’s time to wake up and smell Les Bytes du Chocolate!

359 Section 3B2

Ethics, Risk and Malpractice Avoidance (excerpts)

360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386

387 Section 3C2

Loss Prevention/Malpractice Prevention/Bar Complaint— Review, Response, and Audit

388 389 390 391 392 393 394 395

396 Section 3D2

You Mail, I Mail, We All Send Email

Are disclaimers in emails a necessary evil, a prudent and reasonable course of action or a bloody waste of time? Does anyone read them? Do they provide needed notice, disclosure or protection from creeping legal and societal ills? Here are two examples for your consideration:

1. Too Much, Too Little

Is there a conclusive movement away from the historic requirement of a formal, complete P+S Agreement when selling real estate? In McCarthy v. Tobin, 429 Mass. 84, 87 (1999), the Su- preme Judicial Court held that the controlling fact is the “intention of the parties” and that, even if a formal written agreement was not executed by the parties, that, “[i]f ... the parties have agreed upon all material terms, it may be inferred that the purpose of a formal document which the parties agree to execute is to serve as a polished memorandum of an already binding contract.” Id. {Emphasis added).

The evolutionary trend continued recently when, in a case of first impression, a Superior Court judge (Middlesex) applied McCarthy to find that an exchange of e-mails between buyer and seller of real estate inferred an intention to be bound to a contract. See Feldberg v. Coxall, 2012 WL 3854947 (Mass. Super.). In Feldberg, the Court allowed Buyer’s motion for endorsement of a lis pendens based upon an exchange of e-mails which included sufficiently material terms— purchase price, property description, potential closing date. Seller argued that the e-mails were insufficient to satisfy the Statute of Frauds, G.L. c. 259, § 1, which requires a contract for the sale of land to be in writing and signed by the parties. As the Court noted, “the rules of the road” are not yet written to bridge the 17th century statute of frauds and 2st century e-mail. So, seeking to construct a 4-lane highway, the Court found that the statute of frauds could be satisfied that there was a “writing” that was effectively “signed” by the parties. Said another way, if you live by electrons, you may die by electrons!

The Feldberg case sends the message that, if the parties communicate by e-mail, then their intent can at least be inferred that those communications will serve as a binding agreement without signing a formal written agreement. NB: The Uniform Electronic Transactions Act, G.L. c. 110G recognizes transactions between parties who have both agreed to conduct the transaction electronically and that an “electronic signature” satisfies the law. So, do Feldberg and the UETA mean that electronic signature blocks, among other things, are not necessary? In an age where business and negotiations are conducted electronically, how does one prevent the inference or

397 conclusion being drawn that there is a binding agreement prior to an “intended” formal written agreement being signed by the parties? What do you do with the “binding” language of an Offer to Purchase form, which McCarthy upheld?

Should your emails now contain another disclaimer that says something along the following lines (with thanks to Susan Larose and Richard Vetstein):

Emails sent or received shall neither constitute acceptance of conducting transactions via electronic means nor shall create a binding contract in the absence of a written contract signed by all parties, unless otherwise specifically stated and agreed to by a return email.

Or, do you want to go the other way?

This email shall bind you and your client in the transaction referred to above and your receipt of this email is evidence of your acceptance of all terms and conditions and shall constitute a binding contract in the absence of a fully signed written contract, unless specifically stated otherwise.

Said another way, forgetabout getting out of this one!!!!!!!!!!!!!!!!!!!!

Where, oh where, did my contract go?

2. I Spy With My Little Eye

I have been raising questions for a number of years about the evolution of privacy in the US and the world. As we use social and related media, the 20th century expectations of privacy are changing faster than protection of those expectations. For example, does making a clear choice in online privacy settings provide sufficient protection against disclosure or search? Is there a risk if an online or email account is hacked? The questions that we in the “legal ethics” community have been contemplating and a number of folks have been writing about—such as the article in 2010 in the Marquette Law Review, “The Fourth Amendment and the Brave New World of Online Social networking” coalesces as follows: “Is there now an illusion of privacy? Has the definition (i.e., the subjective expectation of privacy) been inextricably altered? Mark Zucker- berg said several years ago that online activity means that people no longer have an expectation of privacy—It is NO LONGER THE SOCIAL NORM. Is the right to be left alone permanently obviated by the new social media contract? So, if a social media post no longer resides within a reasonable expectation of privacy, let alone your care, custody and control, can access to such sites be held to be outside of 4th Amendment protections from unreasonable search and seizures?

As we know, after 9/11, President Bush issued an executive order that authorized the NSA to conduct surveillance of certain telephone calls without a FISA warrant. The issue has been raised anew recently. Do these realities create a new sense of exposure and liability for lawyers? Must we now take “reasonable” steps first to notify clients and others of the possibility of invasion of routine communications—hence the email disclosure? If we fail to do so, will we be charged

398 with breach of confidentiality by a less than gruntled client? Or, has the expectation of privacy been so eroded for so long that there is no need to connect these dots when engaged in privileged or confidential acts?

In light of the renewed disclosures on NSA activity, we have been considering reviving the following disclaimers for our emails:

“This email message, including any attachments that follow, was sent unencrypted. If you are concerned about confidentiality or privacy, such as the NSA PRISM program, please contact our office to discuss alternate delivery options for future communications,”

Answers may be few and far between. But, the conversation needs to begin anew.

399 Section 3E2

“In-House” and “Out-House”

Many lawyers serve as “In House” counsel to corporations and other entities, a longstanding dual position as employee and inside counsel. Recently, the Massachusetts Supreme Judicial Court decided that, upon specific conditions, a law firm may designate one of its own members as “In- House” counsel to advise and represent the firm, including in connection with client-generated complaints, issue or claims.1

Benefits of having In-House counsel include ease and convenience of access to advice, lack of “direct” out of pocket cost (recognizing that every hour spent engaging inside counsel is an hour not spent on a billable event), knowledge of the real inner workings of the business (the firm) and Court-approval of the role.

Risks include inherent conflicts of interest, the disadvantage of putting in-house counsel at potential odds with one’s partners, the expenditure of time to get comprehensive and independent advice and the possible lack of the “independent” advice to the firm that outside counsel would and should provide. (Clients often say later—”Gee, whose interests were you protecting?” Em- powered by the Court’s decision, the reply is “Why, the law firm’s.” At which point, the client grumbles something about oxen being gored). While all law students are now required to take an ethics course in law school and then the MPRE exam, few lawyers deal with ethical issues and rules on a daily basis. So, weighing in the balance the measure of this case to your particular circumstance may lead to a conclusion that, while some law firms are equipped to designate appropriate in-house counsel to serve in this role, most are not.

We have proudly worn the mantle and served as “Out-House” counsel for many firms (solos to tall towers!) for many years. We have discussed these risks and benefits with our clients. Having had the Court put its imprimatur on in-house practice, we urge careful consideration about this newly-minted role. There is substantial disagreement within the national ethics bar whether the Massachusetts (and some other) decisions sufficiently insulate the firm and those acting as in- house counsel and whether, despite the Court’s ruling, it is still more beneficial to seek outside counsel advice which will be protected.

The attorney-client privilege applies to confidential communications between a law firm’s in-house counsel and the law firm’s lawyers, even where the communications are intended to

1 The national Association of Professional Responsibility Lawyers, of which James Bolan is a Past President, was one of the Amici on the side of permitting the privilege to be adopted/blessed.

400 defend the law firm from allegations of malpractice made by a current outside client. This holding is limited, in part, because “not every attorney in a law firm is its in-house counsel and not every communication within the firm is privileged”. Consequently, for the privilege to apply, four conditions must be met.

First, the law firm must designate, either formally or informally, an attorney or attorneys within the firm to represent the firm as in-house or ethics counsel, so that there is an attorney-client relationship between the in-house counsel and the firm when the consultation occurs.

Second, where a current outside client has threatened litigation against the law firm, the in-house counsel must not have performed any work on the particular client matter at issue or a substantially related matter.

Third, the time spent by the attorneys in these communications with in-house counsel may not be billed or charged to any outside client. Because the law firm is the client with respect to such communications, their cost must be borne by the law firm.

Fourth, as with all attorney-client communications, they must be made in confidence and kept confidential.

Fifth, size matters. For the “designation of an attorney or attorneys within the firm to represent the firm as in-house or ethics counsel, so that there is an attorney-client relationship between the in-house counsel and the firm when the consultation occurs”, large firms regularly employ loss prevention counsel, conflicts counsel and partners who serve as ethics counsel and can, if sufficiently experienced, move into an in-house role. But, most law firms do not have the size, ability or expertise to employ a member in that role. Care must be taken, given the opening by the Court, to shoehorn someone into that position, not just because of the difficulty of the role and the substantial experience that in-house counsel must have, but that other conditions are equally difficult to satisfy.

Sixth, size still matters. “Where a current outside client has threatened litigation against the law firm, the in-house counsel must not have performed any work on the particular client matter at issue or a substantially related matter.” The Court’s decision is, in essence, an analog to an internal “screen” (what used to be called a “Chinese Wall”). The larger the firm, the more segmented it is and can be, the more floors and offices exist to separate counsel and, thus, the easier it is to screen off conflicted members from non-conflicted members simply by virtue of size and space, computer access regimens and other restrictive access protocols. Most firms do not have the size or capacity to wall off its members, nor is it possible to do so in all but the very largest firms (and, even then, disqualification motions despite screens have been successful).

Seventh, size still really matters! “The time spent by the attorneys in these communications with in-house counsel may not be billed or charged to any outside client. Because the law firm is the client with respect to such communications, their cost must be borne by the law firm.” This is a substantially a business decision and large firms can more readily absorb or manage the indirect

401 costs of establishing and maintaining what is effectively a severable “inside law firm”. One real cost of placing one or more lawyers in the role of in-house counsel is that they run the risk of being conflicted out whenever an issue arises as to which the firm seeks or needs advice because the designated counsel has to “run the risk” of proving that she/he had not performed “any work on the particular client matter at issue or a substantially related matter”. Thus, counsel would be justifiably hesitant to advise the firm on any matter related to that client for fear of the conflict.

While one of the undecided issues is when in-house counsel is consulted before the client has “threatened litigation”, observant counsel is aware that smoke is starting to billow out and flames may someday follow. In that case, one of the risks is that the client will press to see all of the communications prior to the actual “threat of litigation” and the fight will be over whether they were or should be deemed to be “in contemplation” of litigation and, thus, also privileged.

Last, “as with all attorney-client communications, they must be made in confidence and kept confidential.” Thus, the age-old conundrum raises its head as to expectations and “unintended consequences” of the relationships within the firm. The client is the law firm. The partners who consult in-house counsel are doing so as the firm’s lawyer. The issue is not whether communications with in-house counsel are privileged. They are. But the facts disclosed are not privileged as they exist outside of the communication. This “push and pull” of interests becomes heightened if “blame” starts to be pushed to a responsible partner. Inside counsel is the firm’s lawyer and not the lawyer for any individual partner or associate. Inside counsel is not an “ombudsperson”. How are the lawyers who relied on the close relationships in the firm going to react in such circumstance? Do they need to be advised to seek separate and independent counsel to advise them? if so, when? Does all of this start to sound like an internal investigation as opposed to an internal relationship?

Some Practical Suggestions/Comments

1. Keep the roles separate—As we have advised corporate in-house counsel, keep the roles separate—one of the lawyers in the firm v. in-house counsel to the firm. Remember that the “client” is the law firm and not the individual attorneys in the firm so there is no detrimental reliance or expectation that legal advice is for the benefit of other than the firm.

2. Keep separate note pads—In-house counsel role has a set of note pads that say “Personal and Confidential—Attorney Client Privileged” on the top of each set of notes, memos, emails, letters.

3. Segregate electronic communications within the firm—Can you set up a separate privileged database or computer? If you send out an email to the lawyer seeking advice and it is in the server with access to all, how to you denote its privileged status?

4. Recording Time—How do you record the time everyone spends on the advice of counsel communications? Do you merge it with everything else? Do you not keep a record at all?

402 Section 3F2

Fee Agreements and Related Administrative Documents

1. Client’s Fee Agreement (Litigation) provided by James S. Bolan 2. Records Management Policy provided by James S. Bolan

Note: Sample documents 4–13 are provided by Massachusetts Law Office Management Assistance Program (LO- MAP), an LCL, Inc. program. Unless otherwise indicated, all template forms in this collection are Massachusetts- specific.

LOMAP makes no representation or warranties of any kind, express or implied, concerning compliance with the Rules of Professional Conduct or the adequacy or enforceability of these sample forms. The following template forms should not be taken wholesale, and used “as is” in your practice; instead, these template forms should serve as guides to develop. Fee agreements and related administrative documents should reflect the needs of you, your specific clients, and your practice (including consideration for your practice areas). You must exercise your independent legal and business judgment when using these forms.

Hourly Fee Agreements: 3. Client’s Fee Agreement (Litigation) 4. Client’s Fee Agreement (Transactional Engagement) 5. Client’s Fee Agreement (Engagement with Possible Litigation to Follow)

Contingent Fee Agreements 6. Contingent Fee Agreement, Form A 7. Contingent Fee Agreement, Form B

Alternative Fee Agreements 8. Flat Fee Agreement

Nonengagement and Disengagement Letters 9. Non-Engagement Letter 10. Disengagement Letter (Closing Letter)

Alternative Clauses 11. Fee Agreement—Document Retention/Destruction at the End of the Representation Under 1.15[f] and 1.16[d] and [e] 12. Fee Agreement—Special Provision for Internet/Cloud Services

403 404 405 406 407

408 CLIENT'S FEE AGREEMENT (Litigation)

I, xxxxxxxxxxxxxxxxx, of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, (the "Client"), hereby agrees to retain the law firm of -Massachusetts, (the "Firm"), in connection with xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

1. The Client hereby agrees to reimburse the Firm for all costs and disbursements incurred by it and to pay for all legal services performed on the Client's behalf at the hourly rates set forth herein below.' This Agreement is not contingent upon the outcome of the above-referenced litigation.

2. a. The Firm hereby acknowledges receipt of Five Thousand Dollars ($5,000.00) as an initial retainer deposit in this matter, and, in consideration of the payment thereof, agrees to provide legal services in connecdon therewith. In the event that the sum of money being held as a retainer falls below the amount of Two Thousand Five Hundred Dollars ($2,500.00), the Firm will notify the Client and the Client shall, on each occasion, as requested, replenish all amounts necessary to bring the Client's retainer account balance to Five Thousand Dollars ($5,000.00). The Client shall complete, execute and retarn to the Firm, along with this Fee Agreement, IRS Form W-9, a copy of which is attached hereto.

b. In the event that the matter proceeds beyond the initial response or the scope ofthe initial engagement changes, the retainer shall then be increased to the amount of Ten Thousand Dollars ($10,000.00). In the event that the new retainer falls below the amount of Five Thousand Dollars ($5,000.00), the client shall, on each occasion, as requested, replenish all amounts necessary to bring the Client's retainer account balance to Ten Thousand Dollars ($10,000.00).

c. In the event that a determination is made by any party, the Client, or the Firm, that the matter is likely to proceed to a trial or hearing, the retainer shall then be increased to the amount of Twenty Thousand Dollars ($20,000.00). In the event that the new retainer falls below the amount of Ten Thousand Dollars ($10,000.00), the client shall, on each occasion, as requested, replenish all amounts necessary to bring the Client's retainer account balance to Twenty Thousand Dollars ($20,000.00).

d. In the event that the money being held as a retainer is insufficient to satisfy any of the Firm's invoices, the Client shall promptly pay such invoices in full, and replenish the retainer. The Client understands that no precise estimate of legal fees can be given. The total amount of attorneys' fees, costs, and disbursements may be substantially more, or less, than the retainers. The Firm's present estimate to complete this representation is not known.

In addhion, in the event that the Firm, in its sole discretion, determines that the money being held as a retainer or the estimate of legal fees to be incurred in the matter is insufficient to satisfy

'These rates are subject to the Firm's annual increases as of each January 1, beginning with [insert date].

Sample Fee Agreements Package 20 409 any of the Firm's prior or fiiture anticipated invoices, the Client shall provide a fmancial statement or other evidence of available assets by which to secure the payment of fiiture legal fees and Client shall execute instmments, such as a promissory note, revolving credit agreement and/or a mortgage or other security, to guarantee and secure the payment of legal fees. The Firm will inform the Client of hs determination to seek security and present the client with the forms to be signed and that Client will have the opportunity in the ten (10) days after being informed to seek advice from independent counsel prior to the execution of such instmment(s) and the provision of such security. The Client shall have the ten (10) days fiom the presentation by the Firm of such forms to be signed. The failure of the Client to execute such instruments within the ten (10) day period, will permit the Firm, after notice to the Client, to terminate the representation of the Client, as allowed by any applicable mles or laws.

3. ft is agreed by and between the Client and the Firm that the retainer paid herein by the Client shall be applied against legal services acmally performed, and disbursements made, by the Firm for the Client, which services shall be charged at the following current hourly rates^:

Primary lawyer(s)

Other lawyers Partners Associates

Paralegals

4. It is understood and agreed by and between the Client and the Firm that the bills/invoices rendered, including a final bill, shall, in addition to the time expended, take into account the following factors described by the Supreme Judicial Court as to the reasonableness of fees for legal services:

• the time and labor required, the novelty and difficulty ofthe questions involved and the skill requisite to peiform the legal services properly;

• the likelihood, if apparent to the Client, that the acceptance of the particular employment, will preclude other employment by the lawyer;

• the fee customarily charged in the locality for similar legal services;

• the amount involved and the results obtained;

• the time limitations imposed by the Client or by the circumstances;

^These rates are subject to the Firm's annual increases as of each January 1, beginning with [insert date].

Sample Fee Agreements Package 21 410 • the nature and length of the professional relationship with the Client;

• the experience, reputation and ability of the lawyer or lawyers performing the services; and,

• whether the fee is fixed or contingent.

Invoices will be submitted to the Client from time to time (generally monthly) and the outstanding sum of time charges and disbursements of the Firm will be deducted from the retainer. All interim billings shall be due and payable upon receipt unless otherwise stated. Failure to pay interim billings promptly, to make the payments as set forth herein or to promptly replenish the retainers, will entide the Firm, after notice to the Client, to apply to the Court for leave to withdraw from representing you, subject to the requirements of any applicable Rules of Professional Conduct or mles ofthe Court. The Client agrees that the fmal bill submitted by the Firm for legal fees and costs will be due and payable at the conclusion of the matter or at the termination of the Attorney - Client relationship, as allowed by any applicable rules or laws.

5. The Client agrees to assume and pay for all out-of-pocket disbursements incurred in connection with this matter (e.g., fding fees, witness fees, travel and mileage costs, sheriffs and constable's fees, expenses of depositions, including transcript costs, investigative expenses, expert witness fees, outside consultant fees, charges for photocopies, including any outside photocopying, postage. Federal Express, courier, fde retrieval, Lexis-Nexis and/or any other computer research, and other incidental expenses); and the Firm agrees to obtain Client's prior approval, excepting costs associated with deposition transcripts, before incurring any specific disbursement expected to be in excess of Five Hundred Dollars ($500.00). In the event that the Firm determines that it is appropriate to consult with and/or retain an expert witness or consultant, the Firm will notify the Client and obtain the Client's consent to consult with or retain such expert witness and/or consultant for the benefit of the Client. In such an event, the Client agrees to pay for all costs and fees associated with the retention of such expert and/or consultant.

6. In the event that, upon either the completion of the within matter, or, the termination of the Firm's representation ofthe Client, the total cost of the legal services performed and disbursements made by the Firm shall be less than the amount of any retainers paid by the Client, the balance shall be refunded to the Client by the Firm.

7. It is understood and agreed that the hourly time charge for legal services includes, but is not limited to, the following: Appearances (including travel time to and fi'om Court, or other administrative, juridical or investigative entity, department or body); conferences, whether with the Client, opposing counsel, lawyers within the Firm or potential witnesses; telephone calls; correspondence; legal research and wrhing, depositions, drafting and filing legal documents; reading and reviewing of file materials and preparation for any hearings and trial. Telephone calls and correspondence shall be billed at either actual time or a minimum of one-tenth (1/10) of one hour.

8. In some cases the Court awards counsel fees to one party and orders the other party to

Sample Fee Agreements Package 22 411 pay the amount awarded; such awards are solely in the discretion of the Court and cannot be relied on with certainty. Also, in some cases, if there is a settlement agi-eed to by any of the parties thereby avoiding a contested trial, the settlement contract may provide that one ofthe parties will contribute an agreed amount towards the other party's legal expenses. In the initial stages of a case it is impossible to predict whether either of the above situations will materialize and therefore no representation is made in this Agreement that any contribution by the other party will be obtained towards the Clienf s legal expenses. In the event, however, that any such contributions are obtained for the benefit of the Client, the amount in question will be credited against the Firm's final bill to the Client.

9. If the Client and Firm are unable to resolve their differences on the question of any fee, and/or expenses, they hereby agree to make a good faith effort at resolving their disputes. If the dispute cannot be resolved, the Client and Firm agi-ee to place the matter before the Fee Arbitration Board ofthe Massachusetts Bar Association and agree to be bound by the decision.

10. If the Firm is discharged by the Client prior to the conclusion of this representation, the Firm is enthled to be then compensated for the value of the services rendered to the Client under this Agreement up to the time of discharge, and for its reasonable expenses and disbursements.

11. The Firm and the Client state that the Firm has made no promise or guarantee as to the successful resolution or eventual outcome of this matter, and that this Agreement is not based upon any such promises or anticipated resuhs.

TfflS IS A LEGALLY BDTOING CONTRACT. ASK TO HAVE EACH TERM YOU DO NOT UNDERSTAND FULLY EXPLAINED TO YOU SO THAT YOU UNDERSTAND THE AGREEMENT YOU ARE MAKING.

12. The Client has read this Agreement carefully and understands the terms hereof

SIGNED IN DUPLICATE

Date xxxxxxxxxxxxxxxxxxxxxxxxx

By:

Sample Fee Agreements Package 23 412 TRANSACTIONAL ENGAGEMENT

CLIENT'S FEE AGREEMENT

, of (the "Chent"), hereby agree to retain the law firm of ^ Massachusetts (the "Firm"), in connection with

2. a. The Firm hereby acknowledges receipt of Five Thousand Dohars ($5,000.00) as an initial retainer deposh in this matter and, in consideration of the payment thereof agi-ees to provide legal services in connection therewith. In the event that the sum of money being held as a retainer falls below the amount of Two Thousand Five Hundred Dollars ($2,500.00), the Firm will notify the Client and the Client shall, on each occasion, as requested, replenish all amounts necessary ("refresher") to bring the Client's retainer account balance to Five Thousand Dollars ($5,000.00). The Client shall complete, execute and retum to the Firm, along with this Fee Agreement, IRS Form W-9, a copy of which is attached hereto.

b. In the event that the scope of the engagement anticipated by the Firm at the inception of the attorney-client relationship increases or changes in any way, or should the Client fail to keep the appropriate retainer balance, the Firm reserves the right, upon thirty (30) days notice to the Client, to increase the base amount ofthe retainer and any refresher.

c. In the event that the money being held as a retainer is insufficient to satisfy any ofthe Firm's invoices, the Client shall promptly pay such invoices in full, and replenish the full retainer. The total amount of attorneys' fees, costs, and disbursements may be substantially more, or less, than the retainers. The Firm's present estimate to complete this representation is not known. The Client understands that no precise estimate of legal fees can be given.

3. It is agreed by and between the Client and the Firm that the retainer paid herein by the Client shall be applied against legal services actually performed, and disbursements made, by the Firm for the Client, which services shall be charged at the following cuirent hourly rates^:

Primary lawyers

Other lawyers Partners

These rates are subject to the Firm's amiual increases as of each January 1, beginning with [insert date]. ^ These rates are subject to the Finn's annual increases as of each January 1, beginning with [insert date].

Sample Fee Agreements Package 25 413 Associates

Paralegals

4. It is understood and agreed by and between the Client and the Firm that the bills/invoices rendered, including a fmal bill, shall, in addition to the time expended, take into account the following factors described by the Supreme Judicial Court as to the reasonableness of fees for legal services:

« the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal services properly;

• the likelihood, if apparent to the Client, that the acceptance of the particular employment, will preclude other employment by the lawyer;

• the fee customarily charged in the locality for similar legal services;

• the amount involved and the results obtained;

• the time limitations imposed by the Client or by the circumstances;

• the nature and length of the professional relationship with the Client;

• the experience, reputation and ability ofthe lawyer or lawyers performing the services; and,

• whether the fee is fixed or contingent.

Invoices will be submitted to the Client from time to time (generally monthly) and the outstanding sum of time charges and disbursements of the Firm will be deducted from the retainer. All interim billings shall be due and payable upon receipt unless otherwise stated. Failure to pay interim billings promptly, to make the payments as set forth herein or to promptly replenish the retainers, will entitle the Firm, after notice to the Client, to apply to the Court for leave to withdraw from representing you, subject to the requirements of any applicable Rules of Professional Conduct or mles of the Court. The Client agrees that the final bill submitted by the Firm for legal fees and costs will be due and payable at the conclusion of the matter or at the termination of the Attorney - Client relationship, as allowed by any applicable rules or laws.

5. The Client agrees to assume and pay for all out-of-pocket disbursements incurred in connection with this matter (e.g., filing fees, travel and mileage costs, investigative expenses, expert fees, outside consultant fees, charges for photocopies, including any outside photocopying, postage. Federal Express, courier, file retrieval, Lexis-Nexis and/or any other computer research, and other incidental expenses); and the Firm agrees to obtain Client's prior approval before incurring any specific disbursement expected to be in excess of Five Hundred Dollars ($500.00). In the event that the Firm determines that it is appropriate to consuh with and/or retain an expert or consultant, the Firm will notify the Client and obtain the Client's consent to consuh with or retain

Sample Fee Agreements Package 26 414 such expert and/or consultant for the benefit of the Client. In such an event, the Client agrees to pay for all costs and fees associated with the retention of such expert and/or consultant.

6. In the event that, upon either the completion of the within matter, or, the termination ofthe Firm's representation of the Client, the total cost of the legal services performed and disbursements made by the Firm shall be less than the amount of any retainers paid by the Client, the balance shall be refunded to the Client by the Firm.

7. It is understood and agreed that the hourly time charge for legal services includes, but is not limited to, the following: travel time to and from meetings; conferences, whether with the Client, opposing counsel, lawyers within the Firm or potential witnesses; telephone calls; correspondence; legal research and writing, depositions, drafting and filing legal documents; reading and reviewing of file materials and preparation for any meetings or conferences. Telephone calls and correspondence shall be billed at either actual time or a minimum of one-tenth (1/10) of one hour.

8. In addhion, in the event that the Firm, in its sole discretion, determines that the money being held as a retainer or the estimate of legal fees to be incurred in the matter is insufficient to satisfy any ofthe Firm's prior or fUmre anticipated invoices, the Client shall provide a financial statement or other evidence of available assets by which to secure the payment of future legal fees and Client shall execute instmments, such as a promissory note, revolving credit agreement and/or a mortgage or other security, to guarantee and secure the payment of legal fees. The Firm will inform the Client of hs determination to seek security and present the client with the forms to be signed. In such event, the Client shall have the ten (10) days from the presentation by the Firm of such forms to be signed to seek advice from independent counsel prior to the execution of such instmment(s) and the provision of such security. The failure of the Client to execute such instmments within the ten (10) day period will permit the Firm, after notice to the Client, to terminate the representation ofthe Client, as allowed by any applicable mles or laws.

9. If the Client and Firm are unable to resolve their differences on the question of any fee, and/or expenses, they hereby agree to make a good faith effort at resolving their disputes. If the dispute cannot be resolved, the Client and Firm agi-ee to place the matter before the Fee Arbitration Board of the Massachusetts Bar Association, or some other fee dispute resolution body, and agree to be bound by the decision.

10.. If the Firm is discharged by the Client prior to the conclusion of this representation, the Firm is entitled to be then compensated for the fair value of the sei-vices rendered to the Client up to the time of discharge, and for its reasonable expenses and disbursements.

11. The Firm and the Client state that the Firm has made no promise or guarantee as to the successful resolution or eventual outcome of this matter, and that this Agi-eement is not based upon any such promises or anticipated resuhs.

THIS IS A LEGALLY BINDING CONTRACT. ASK TO HAVE EACH TERM YOU DO NOT UNDERSTAND FULLY EXPLAR^D TO YOU SO THAT YOU UNDERSTAND THE AGREEMENT YOU ARE MAKING.

Sample Fee Agreements Package 27 415 (mm 12. The Client has read this Agreement carefully and understands the terms hereof.

SIGNED IN DUPLICATE

Date

By:

Sample Fee Agreements Package 28 416 ENGAGEMENT WITH POSSIBLE LITIGATION TO FOLLOW

CLIENT'S FEE AGREEMENT

I, (the "Client"), hereby agree to retain the law firm of , Massachusetts (the "Firm") in connection with

1. Client hereby agrees to reimburse the Firm for all costs and disbursements incurred by it and to pay for all legal services performed on Clienf s behalf at the hourly rates set forth herein below. This Agreement is not contingent upon the outcome ofthe above-referenced litigation.

The Firm hereby acknowledges receipt of Ten Thousand Dollars ($10,000.00) as an initial retainer deposit for initial consultation and related services in regard to this matter, and, in consideration of the payment thereof, agrees to provide legal services in connection therewith. In the event that the sum of money being held as a retainer falls below the amount of Five Thousand Dollars ($5,000.00), the Firm will notify Client and Client will pay, on each occasion, as requested, additional retainers in the amount of Five Thousand Dollars ($5,000.00). In the event that the money being held as a retainer is insufficient to satisfy any of the Firm's invoices. Client shall promptly pay such invoices in full, and replenish the retainer. Client understands that no precise estimate of legal fees can be given. The total amount of attorneys' fees, costs, and disbursements may be substantially more, or less, than this initial retainer. The Firm's present estimate to complete this representation is not known. The Client shall complete, execute and return to the Firm, along with this Fee Agi-eement, IRS Form W-9, a copy of which is attached hereto.

2. It is agreed by and between Client and the Firm that if it becomes apparent to the Firm that the matter will proceed to trial, then, upon that determination or conclusion by the Firm, the retainer shall be increased to Twenty Thousand Dollars ($20,000.00), and shall be paid immediately upon request. After this increase of retainer, if the amount of money being held as a retainer falls below Ten Thousand Dollars ($10,000.00), the Finn will notify Client and Client will pay, on each occasion requested, additional retainers in the amount of Ten Thousand Dollars ($10,000.00).

3. It is not intended that this Agreement cover any appeal that may be filed following a trial by any party.

5. In addition, in the event that the Firm, in hs sole discretion, determines that the money being held as a retainer or the estimate of legal fees to be incurred in the matter is insufficient to satisfy any ofthe Firm's prior or future anticipated invoices, Client shall provide a financial statement or other evidence of available assets by which to secure the payment of future legal fees and Client shall execute instruments, such as a promissory note, revolving credit agreement and/or a mortgage or other security instmments, to guarantee and secure the payment of legal fees. The Firm will inform Client of its determination to seek security and present Client with the forms to be signed and that Client will have the opportunity in the ten (10) days after being so informed to seek advice fiom independent counsel prior to the execution of such instrument(s) and the provision of such security. Client shall have the ten (10) days from the presentation by the Firm

Sample Fee Agreements Package 30 417 of such forms to be signed. The failure of Client to execute such instmments within the ten (10) day period, will permit the Firm, after notice to Client, to terminate representation of Client, as allowed by any applicable mles or laws.

6. It is agreed by and between Client and the Firm that the retainer paid herein by Client shall be applied against legal services actually performed, and disbursements made, by the Firm for Client, which services shall be charged at the following current hourly rates:

(a) Primary lawyer

(b) Other lawyers Partners Associates

(These rates are subject to the Firm's annual increases as of each January 1, beginning with January 1, 2008.)

7. It is understood and agreed by and between Client and the Firm that the bills/invoices rendered, including a final bill, shall, in addition to the time expended, take into account the following factors described by the Supreme Judicial Court as to the reasonableness of fees for legal services:

(a) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal services properly;

(b) the likelihood, if apparent to Client, that the acceptance of the particular employment, will preclude other employment by the lawyer;

(d) the amount involved and the resuhs obtained;

(e) the time limitations imposed by Client or by the circumstances;

(f) the nature and length of the professional relationship with Client;

(g) the experience, reputation and ability of the lawyer or lawyers performing the services; and,

(h) whether the fee is fixed or contingent.

Invoices will be submitted to Client from time to time (generally monthly) and the outstanding sum of time charges and disbursements of the Firm will be deducted from the retainer.

Sample Fee Agreements Package 31 418 All interim billings shall be due and payable upon receipt unless otherwise stated. Failure to pay interim billings promptly or to make the payments as set forth herein will permit the Firm, after notice to Client, to terminate the representation of Client, subject to applicable mles of Court and any applicable Rules of Professional Conduct. Client agrees that the final bill submitted by the Firm for legal fees and costs will be due and payable at the conclusion of the matter or at the termination of the Attorney - Client relationship.

8. Client agrees to assume and pay for all out-of-pocket disbursements incurred in connection with this matter (e.g., fding fees, witness fees, travel and mileage costs, sheriffs and constable's fees, expenses of deposhions, including transcript costs, investigative expenses, expert witness fees, outside consultant fees, charges for photocopies, including any outside photocopying, postage. Federal Express, courier, file retrieval, Lexis-Nexis and/or any other computer research, and other incidental expenses); and the Firm agrees to obtain Client's prior approval, excepting costs associated with deposition transcripts, before incurring any specific disbursement expected to be in excess of Five Hundred Dollars ($500.00). In the event that the Firm determines that it is appropriate to consult with and/or retain an expert witaess or consultant, the Firm will notify Client and obtain Client's consent to consult with or retain such expert witness and/or consultant for the benefit of Client. In such an event, Client agrees to pay for all costs and fees associated with the retention of such expert and/or consultant.

9. In the event that, upon either the completion ofthe within matter or the teimination of the Firm's representation of Client, the total cost of the legal services performed and disbursements made by the Firm shall be less than the amount of any retainers paid by Client, the balance shall be refunded to Client by the Firm.

10. In some cases the Court awards counsel fees to one party and orders the other party to pay the amount awarded; such awards are solely in the discretion of the Court and cannot be relied on with certainty. Also, in some cases, if there is a settlement agreed to by any of the parties thereby avoiding a contested trial, the settlement contract may provide that one of the parties will contribute an agreed amount towards the other party's legal expenses. In the initial stages of a case it is impossible to predict whether either of the above situations will materialize and therefore no representation is made in this Agreement that any contribution by the other party will be obtained towards Client's legal expenses. In the event, however, that any such contributions are obtained for the benefit of Client, the amount in question will be credited against the Firm's final bill to Client.

11. If the Firm is discharged by Client prior to the conclusion of this representation, the Firm is entitled to be then compensated for the fair value of the services rendered to Client up to the time of discharge, and for hs reasonable expenses and disbursements.

12. The Firm and Client state that the Firm has made no promise or guarantee as to the successful resolution or eventual outcome of this matter, and that this Agreement is not based upon any such promises or anticipated results.

13. Client acknowledges and agrees that he/she/h has been apprised of the possible benefits and the risks and detriments associated with litigation, including, but not limited to the

Sample Fee Agreements Package 32 419 w MPLI possibility that the attomeys fees and costs contemplated by this Agreement may exceed the monetary value to or the amount ofthe claims and/or defenses to be litigated and that, upon execution of this Agreement, Client assumes hill responsibility for that risk as a part of entering into this Agi-eement.

14. [CONSIDER ADDING PARAGRAPH REGARDING FILE DESTRUCTION AT THE END OF THE REPRESENTATION UNDER 1.15[f| AND 1.16[d] AND [e]

TfflS IS A LEGALLY BINDhMG CONTRACT. ASK TO HAVE EACH TERM YOU DO NOT UNDERSTAND FULLY EXPLAR^D TO YOU SO THAT YOU UNDERSTAND THE AGREEMENT YOU ARE MAKDsfG.

15. Client has read this Agreement carefully and understands the terms hereof

SIGNED IN DUPLICATE

CLIENT

Date

[FIRM]

By:

Sample Fee Agreements Package 33 420 From SJC Rule 3:07 - Massachusetts Rules of Professional Conduct Rule 1.5

CONTINGENT FEE AGREEMENT, FORM A'

To be Executed in Duplicate

Date: , 20_

The Cliem (Name) (Street & Number) (City or Town) retains the Lawyer (Name) (Street & Number) (City or Town) to perform the legal sei-vices mentioned in paragraph (1) below. The lawyer agrees to perform them faithfully and with due diligence.

(1) The claim, controversy, and other matters with reference to which the services are to be performed are:

(2) The contingency upon which compensation is to be paid is recovery of damages, whether by settlement, judgment or otheiwise.

(3) The lawyer agrees to advance, on behalf of the client, all out-of-pocket costs and expenses. The client is not to be liable to pay court costs and expenses of litigation, other than from amounts collected for the client by the lawyer.

(4) Compensation (including that of any associated counsel) to be paid to the lawyer by the client on the foregoing contingency shall be the following percentage of the (gross) (net) [indicate which] amount collected. [Here insert the percentages to be charged in the event of collection. These may be on a flat rate basis or in a descending or ascending scale in relation to the amount collected.] The percentage shall be applied to the amount of the recovery not including any attorney's fees awarded by a court or included in a settlement. The lawyer's compensadon shall be such attorney's fees or the amount determined by the percentage calculation described above, whichever is greater.

(5) [IF APPLICABLE] The client understands that a portion ofthe compensation payable to the lawyer pursuant to paragraph 4 above shall be paid to [Name of Attorney entitled to a share of compensation] and consents to this division of fees.

(6) [IF APPLICABLE] If the attomey-client relationship is terminated before the conclusion of the case for any reason, the attorney may seek payment for the work done and expenses advanced before the termination. Whether the lawyer will receive any payment for the work done before the termination, and the amount of any payment, will depend on the benefit to the

^ See Rule, attached.

Sample Fee Agreements Package 35 421 client ofthe services performed by the lawyer as well as the timing and circumstances of the termination. Such payment shall not exceed the lesser of (i) the fair value of the legal services rendered by the lawyer, or (ii) the contingent fee to which the lawyer would have been endtled upon the occurrence of the contingency. This paragraph does not give the lawyer any rights to payment beyond those confeiTed by existing law.

(7) [USE IF LAWYER IS SUCCESSOR COUNSEL] The lawyer is responsible for payment of former counsel's reasonable attomey's fees and expenses and the cost of resolving any dispute between the client and prior counsel over fees or expenses.

This agreement and its performance are subject to Rule 1.5 of the Rules of Professional Conduct adopted by the Massachusetts Supreme Judicial Court.

WE EACH HAVE READ THE ABOVE AGREEMENT BEFORE SIGNING IT.

Witnesses to signatures Signatures of client and lawver (To client)

(Signature of client) (To lawyer)

_ (Signature of lawyer)

Sample Fee Agreements Package 36 422 From SJC Rule 3.07 - Massachusetts Rules of Professional Conduct Rule 1.5

CONTINGENT FEE AGREEMENT, FORM B'

To be Executed in Duplicate

Date: , 20_

The Client (Name) (Street & Number) (City or Town) retains the Lawyer (Name) (Street & Number) (City or Town) to perform the legal services mentioned in paragraph (1) below. The lawyer agrees to perform them faithfully and with due diligence.

(1) The claim, controversy, and other matters with reference to which the services are to be performed are:

(2) The contingency upon which compensation is to be paid is:

(3) Costs and Expenses. The client should initial next to the option selected.

(i) The lawyer agrees to advance, on behalf ofthe client, all out-of-pocket costs and expenses. The client is not to be liable to pay court costs and expenses of litigation, other than from amounts collected for the client by the lawyer; or

(ii) The client is not to be liable to pay compensation or court costs and expenses of htigation otherwise than from amounts collected for the client by the lawyer, except as follows:

(4) Compensadon (including that of any associated counsel) to be paid to the lawyer by the client on the foregoing contingency shall be the following percentage of the (gross) (net) [indicate which] amount collected. [Here insert the percentages to be charged in the event of collection. These may be on a flat rate basis or in a descending or ascending scale in relation to the amount collected.] The percentage shall be applied to the amount of the recovery not including any attorney's fees awarded by a court or included in a settlement. The lawyer's compensation shall be such attomey's fees or the amount determined by the percentage calculation described above, whichever is greater. [Modify the last two sentences as appropriate if the parties agi-ee on some other basis for calculation.]

(5) [IF APPLICABLE] The client understands that a portion of the compensation payable to the lawyer pursuant to paragraph 4 above shall be paid to [Name of Attorney entitled to a share of compensation] and consents to this division of fees.

' See Rule, attached.

Sample Fee Agreements Package 37 423 (6) [IF APPLICABLE] If the attomey-client relationship is terminated before the conclusion of the case for any reason, the attomey may seek payment for the work done and expenses advanced before the termination. Whether the lawyer will be entitled to receive any payment for the work done before the termination, and the amount of any payment, will depend on the benefit to the client of the services performed by the lawyer as well as the timing and circumstances of the termination. Such payment shall not exceed the lesser of (i) the fair value ofthe legal services rendered by the lawyer, or (ii) the contingent fee to which the lawyer would have been entitled upon the occurrence of the contingency. This paragraph does not give the lawyer any rights to payment beyond those conferred by existing law.

(7) [USE IF LAWYER IS SUCCESSOR COUNSEL] Payment of any fees owed to former counsel. The client should initial next to the option selected.

(i) The lawyer is responsible for payment of former counsel's reasonable attorney's fees and expenses and the cost of resolving any dispute between the client and prior counsel over fees or expenses; or

(ii) The client is responsible for payment of former counsel's reasonable attorney's fees and expenses and the cost of resolving any dispute between the client and prior counsel over fees or expenses.

This agreement and its performance are subject to Rule 1.5 of the Rules of Professional Conduct adopted by the Massachusetts Supreme Judicial Court.

WE EACH HAVE READ THE ABOVE AGREEMENT BEFORE SIGNING IT.

Witnesses to signatures Signatures of client and lawyer (To client)

(Signature of client) (To lawyer)

_ (Signature of lawyer)

Sample Fee Agreements Package 38 424 :miMll!1i £ This flat fee agreement form is provided as a sample only. You must review Massachusetts Rules of Professional Conduct to determine if the form is appropriate for your use in Massachusetts.

DISCLAIMER: The State Bar of Wisconsin makes no representations or warranties of any kind, express or implied, concerning compliance with the rules of professional conduct or the legal adequacy or enforceability of the accompanying sample or any part of it. These samples are intended for use only by lawyers admitted to practice in Wisconsin, who are expected to utilize their own independent legal and business judgment when evaluating the forms for their use.

This information should be used as a guide only. You alone are responsible for your contracts.

FLAT FEE AGREEMENT

1. Anonymous Lawyer, S.C., Attorney at Law (hereinafter "Attorney"), is engaged to represent (hereinafter "Client"), in a matter in County. Attomey and Client agree that Attorney is retained to perform the following legal sei-vice in connection with the matter: [INSERT DESCRIPTION OF SCOPE OF REPRESENTATION].

2. Client agrees to pay a flat fee of $ for this service. That fee, upon payment, becomes the property of the law firm. It will be deposited in Attorney's business account, rather than the firm's trust account, and Client hereby specifically agrees that Attomey may do so.

3. Client will be responsible for costs incuiTcd in the representation, such as witness and subpoena fees, process server's fees, investigator's fees, mileage for travel, parking, etc., that Attorney expects to incur in this matter and Client agrees to pay $ as an inhial advance for costs. Attomey will deposit the cost advance in Attorney's tmst account and disburse as needed to pay costs incurred on behalf of client. Client further agi'ees to pay, upon demand, any additional costs or disbursements incurred or advanced on Clienf s behalf.

4. In the event Client fails to pay Attomey's fees and/or costs and disbursements pursuant to this agreement, Attorney may withdraw as counsel upon written, timely notice to Client, subject to the court's authorization to withdraw.

5. At the conclusion of the representation, Attorney will provide client with a written accounting of all fees in the matter and a refund of any advanced fees that have not been earned and advanced costs that have not been used. If Attorney's representation terminates prior to the performance of the agreed-upon service. Attorney will provide client with a written accounting of the fees earned and costs incurred, and a refund of any unearned fees and/or unexpended costs.

Sample Fee Agreements Package 43 425 3AMPLE 6. If Client disputes the amount of fees or refund, if any, of uneamed fees, Client must notify Attomey, in writing, of the dispute within 30 days of the date of the fmal accounting. Client has the right to demand binding fee arbitration through available fee arbitration program to resolve the dispute. The parties agi'ee to be bound by the decision. Client is not required to agree to binding arbitration and may elect any other legal means to settle the dispute. If Client agrees to binding arbitration, Attomey must submh the dispute to binding arbitration within 30 days of receiving timely written notice of the dispute. 7. This agreement does not cover or apply to the fding of, prosecution of or defense of an appeal, in which case a new representation and fee agreement must be executed.

8. Storage of Files: Due to space limitations, h is our firm pohcy that files be stored in our storage area for seven (7) years after conclusion of a particular matter. After seven (7) years, the file is ordinarily destroyed. If you should desire a copy of the file, or any part of it, after the conclusion of this matter, it will be your responsibility to make a specific written request for those documents within that seven (7) year period. If no such request is made, the file may be destroyed after seven (7) years in accordance with firm policy.

9. By signing this agreement, I agree that I have had an opportunity to discuss the agreement with Attorney, understand the agreement, and have had an opportunity to ask questions and have received an explanation for any questions that I had.

Dated this day of , 2007, at Hometown, Wisconsin.

ANONYMOUS LAWYER, S.C.

By: Anonymous Client Anonymous Lawyer, Attomey-at-Law

Sample Fee Agreements Package 44 426 NON-ENGAGEMENT LETTER

(May be sent by certified mail, with a return receipt requested)

DATE

NAME ADDRESS CITY, STATE & ZIP

RE: [SUBJECT]

Dear:

The purpose of tbis letter is to confirm, based on our conversation of [date], that [insert firm name] will not represent you in [describe matter] because [insert reason for declination, if possible and appropriate to state it]. Our decision to decline this case should not be construed as a statement ofthe merits of your case.

You should be aware that any action in this matter must be fded within the applicable statute of limitations. I strongly recommend that you consult with another lawyer concerning your rights in this matter.

You should immediately confer with another attorney for assistance in order to pursue this matter. The Massachusetts Bar Association Lawyer Referral can assist you in fmding a lawyer if you do not have the name of available. They can be contacted by telephone at 866-MASS-LRS or online by clicking "Need a Lawyer?" at www.massbar.org.

This will also confirm that I am not charging you for any legal service or advice, and we have not provided any advice to you [if that is correct]. Finally, all documents which you have provided to us have been returned to you.

Very truly yours.

Enclosures

Sample Fee Agreements Package 46 427 - SM^LE DlSENGAGEUffiNT LETTER - CLOSING LETTER

RE: [Subject]

Dear [Name]:

We wish to take this opportunity to thank you for allowing us to represent you in the [describe] matter. In order to tie up all the loose ends, we will [outline any final matters you will take care of]. In addition, you will need to [outline everything the client is responsible for at this time].

Since this matter is now closed, we suggest that you keep all your copies of information relating to the matter in a safe place where you can easily locate them. We are closing our file, which will be kept for a period of [10 years]. We are returning your original [records, documents] related to your case.

We hope this matter has been concluded to your satisfaction. We would appreciate your filling out the enclosed evaluation questionnaire. The information you provide will help us improve our services.

Thank you for allowing us to represent you in this matter. If we can be of further assistance on this or any other matter, please let us know.

Very truly yours.

[Insert Lawyer's Name] [Insert Firm's Name]

Sample Fee Agreements Package 48 428 FEE AGREEMENT - DOCUMENT RETENTION/DESTRUCTION AT THE END OF THE REPRESENTATION UNDER 1.15[f] AND 1.16[d] AND [e]

Upon termination of this engagement, all papers, documents and other materials supplied to us by you in connection with that engagement will be retumed to you upon your written request. You may also request copies of all discovery documents, pleadings and other papers fded with or by the court or sei-ved by or upon any party. Those papers and documents will be delivered to you upon payment ofthe cost of copying the requested documents. In addition, you may request and receive copies of documents and other things prepared in the course of litigation, such as lawyers' notes, internal memoranda, legal and factual research, investigative reports and other work product prepared in the course of the engagement, but only ifyou have paid for the work performed.

This firm is not a document repository and we reseive the right to destroy or otheiwise dispose of documents and other materials in the file within a reasonable time after termination of this engagement. We have no obligation to retain files relating to this engagement beyond a reasonable period of time sufficient to permh you to request documents as set forth above. Under certain circumstances there may be exceptions and we may be required by the law to retain documents, but otherwise, there will be no exception unless we specifically agree in writing to retain and store documents.

Sample Fee Agreements Package 50 429 FEE AGREEMENT - SPECIAL PROVISION FOR INTERNET/CLOUD SERVICES

We use Internet and cloud based services for storing information and fdes, sharing information with clients and experts and for ease of access. These internet based services may include, among others, tracking appointments and other calendar events, storing contact information, tracking time, storing fdes and documents, sharing files with you and other authorized persons or entities and file synchronization services to keep this information up to date.

Whether we store this information in our physical offices or with an internet/cloud based service, we have an obligation to protect confidential information. Specifically, Supreme Court Rule 20:1.6 Confidentialitv requires that we not reveal information relating to our representation of you without your informed consent and we are therefore advising you of our intent to use these services in your representation. In addition to this Rule, there are a number of entities that have issued ethics opinions on the use of internet/cloud services by lawyers in representing their clients. These opinions state that using internet/cloud services by lawyers are acceptable so long as the firm takes reasonable steps to prevent the disclosure of confidential information. These steps include reviewing the various policies, procedures and security safeguards that an internet/cloud provider has in place. We follow the recommendations that have been made in one or more of these ethics opinion, but we would be remiss in not stating that no one can provide an absolute guarantee that a disclosure will not happen whether information is stored in our office or on the internet. What we can guarantee is that we will take all reasonable steps to insure that such a disclosure does not occur. We do this by conducting a thorough review of each and every internet/cloud provider that we use. Only after this review and the determination that a disclosure of confidential information is very unlikely are we satisfied that the service complies with our obligations to represent you. We understand though if you are not comfortable with our use of these services in representing you. If you prefer that we do not use these services in your representation, please cross out this provision and initial in the margin.

Sample Fee Agreements Package 52 430 Section 3G2

Massachusetts Bar Association Committee on Professional Ethics Opinion 2014-5 Summary: A lawyer for a party may "friend" an unrepresented adversary in order to obtain information helpful to her representation from the adversary's nonpublic website only when the lawyer has been able to send a message that discloses his or her identity as the party's lawyer.

Facts: A lawyer inquires whether she may directly request access to "non-public information" on a potential adverse party's social networking site (Facebook) to attempt to ascertain information relevant to contemplated litigation when the opposing party (X) is at present unrepresented.

Discussion: We begin our analysis with the reported fact that X is unrepresented. Rule 4.3 provides that "(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding." We will assume that as of the moment the inquirer does not know that X has counsel. Rule 4.3 states that a lawyer shall makes a reasonable effort to correct any misunderstanding of an unrepresented party with whom the lawyer is dealing concerning the lawyer's role. This requirement seems derived from the more general proposition contained in Rule 4.1(a) that "[i]n the course of representing a client a lawyer shall not knowingly. . . " make a false statement of material fact or law to a third person." Rule 8.4(c) makes the same point even more broadly: "It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation . . . .

In the Committee's view, it is not permissible for the lawyer who is seeking information about an unrepresented party to access the personal website of X and ask X to "friend"[1] her without dis- closing that the requester is the lawyer for a potential plaintiff. In so doing, the lawyer would be engaging in deceit forbidden by Rules 4.1 and 8.4(c). See Philadelphia Bar Association Opinion 2009-2 and San Diego County Bar Association Legal Ethics Opinion 2011-2. Moreover, this is a situation where not only is X likely to misunderstand the lawyer's role but also one where the lawyer has enabled the misunderstanding. See New Hampshire Advisory Ethics Opinion 2012- 13/05. We do not agree with the conclusion of the Oregon Ethics Committee in its Opinion No. 2013-189 that the burden should be on the unrepresented party to ask about the inquirer's purpose rather than on the lawyer to disclose her identity and/or purpose. We believe that it is permissible to "friend" X in this situation in order to access nonpublic information only when the lawyer has been able to send a message that discloses her identity as the plaintiff's lawyer. Face- book, LinkedIn and other social media sites allow the invitation to include a message. We also do not agree with the suggestion in Formal Opinion 2010-2 of the New York City Bar Associa-

431 tion's Committee that the lawyer's identification message may be contained in a "profile" created on the lawyer's personal social media page. It is well known that "friending" requests are often granted quite casually, and viewing the invitee's profile is not necessarily a mandatory step in accepting a "friend" request. The lawyer's message must accompany the "friending" request in order to avoid the very real possibility that the recipient will be deceived. Although this communication medium is obviously different, the bottom line resembles a telephone call in which the lawyer does not adequately identify herself.

It is incumbent on the inquiring lawyer to keep in mind, however, that at some point she may learn that in fact X has come to be represented by counsel. At such point, the Rules change and any communication with X becomes subject to the prohibition contained in Rule 4.2. (As to a lawyer's "knowledge" of representation, see Rule 4.2, Comment 5.) Rule 4.2 provides that "[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." This Opinion does not address any issues relating to social media when the restrictions of Rule 4.2 are involved.

This Opinion addresses only the factual situation described herein and is not meant to advise with respect to other hypothetical situations involving access to social networking sites.

This advice is that of a committee without official government status.

This opinion was approved for publication by the Massachusetts Bar Association's House of Delegates on May 8, 2014.

[1] For simplicity, we refer to Facebook/Instagram terminology, but the Committee's view applies equally to connecting on LinkedIn and other similar social media.

432

Section 3H2

MORRISON MAHONEY LLP COUNSELLORS AT LAW

250 SUMMER STREET BOSTON, MASSACHUSETTS 02210-1181 MASSACHUSETTS NEW HAMPSHIRE 617-439-7500 BOSTON MANCHESTER FALL RIVER NEW JERSEY SPRINGFIELD S PARSIPPANY cott Douglas Burke WORCESTER Direct Dial: 617-439-7578 CONNECTICUT NEW YORK Direct Fax: 617-342-4937 NEW YORK [email protected] HARTFORD RHODE ISLAND ENGLAND PROVIDENCE LONDON

SAMPLE ENGAGEMENT LETTER/AGREEMENT

[date]

Personal & Confidential

Mr. Bad Shape, President Defective Widgets, Inc. 13 Dire Straits Boston, MA 01970

Re: Best Widgets v. Defective Widgets Our File No.

Dear Mr. Shape:

I am writing to confirm that you have requested Morrison Mahoney LLP (“Morrison Ma- honey” or “the firm”) to protect Defective Widgets, Inc.’s (“Defective Widgets” or “you”) interests with respect to the above-referenced matter. We appreciate your confidence in our firm and are pleased to accept this engagement subject to the terms of this letter. This Agreement sets forth the terms of our services.

[Optional insert: We will not commence work on your behalf until this Agreement, executed by you, is returned with the agreed retainer/deposit.]

433 MORRISON MAHONEY LLP

Mr. Bad Shape Page [date]

Scope of Services

Morrison Mahoney will be providing services to you in connection with the claims asserted by Best Widgets against Defective Widgets for slander.

Because the engagement is limited to a specific undertaking, Morrison Mahoney’s acceptance of this engagement does not involve an undertaking to provide any services to you or any of your interests in any other matter unless specifically requested by you and agreed by the firm. After completion of this matter, changes may occur in pertinent laws or regulations that may have an impact upon your future rights and liabilities. Unless you engage us after completion of this matter to provide advice on issues arising from this matter, Morrison Mahoney will have no obligation to provide any advice to you with respect to future legal developments.

You may limit or expand the scope of our engagement from time to time, provided that Morrison Mahoney must agree in writing to any expansion of scope. Except as we may otherwise agree in writing, the terms of this Agreement apply to all expansions in the scope of engagement and to all additional engagements for you which the firm may undertake.

[Optional insert for ongoing client matters (e.g. corporate advice, advice to municipalities, etc.):

Morrison Mahoney will be providing ongoing services to you, as requested by authorized representatives within your organization. In order to avoid any confusion on the part of our firm or your organization as to whether we are providing legal services with regard to any particular matter, we will send a letter or email that identifies each matter for which we have been engaged. Please do not assume that we are handling any matter without such a confirmation. Because each engagement is limited to a specific undertaking, Morrison Mahoney’s acceptance of this engagement does not involve an undertaking to provide any services to you or any of your interests in any other matter unless specifically requested by you and agreed by the firm. After completion of this matter, changes may occur in pertinent laws or regulations that may have an impact upon your future rights and liabilities. Unless you engage us after completion of a particular matter to provide advice on issues arising therefrom, Morrison Mahoney will have no obligation to provide any advice to you with respect to future legal developments.

Except as we may otherwise agree in writing, the terms of this Agreement apply to all engagements for you which the firm may undertake.]

Hourly Fee Rates

434 MORRISON MAHONEY LLP

Mr. Bad Shape Page [date]

Morrison Mahoney has agreed to represent Defective Widgets at fees of $100 per hour for partners, and at $75 per hour for associates. Paralegal and law clerk services are billed at a rate of $20 per hour. These rates are subject to periodic adjustment, generally at the beginning of a calendar year, with 30 days notice to you.

Costs and Disbursements

In addition to the fees listed above, you will be responsible for the cost and disbursements which may be incurred in the course of our representation of you. These disbursements include court costs and filing fees, service of process fees, expert fees, transcript costs, long-distance telephone charges, facsimile charges, photocopy costs, travel expenses, computer research costs, overnight and hand-delivery charges, and any other additional charges other than the actual payment of attorneys’ fees. These charges will be based on actual charges incurred by the firm plus 0% to 10% depending on the amount of administration necessary to track the expense. In-house photocopies will be charged at less than $.15 per page (B&W) and $1.00 per page (color). Out- side vendor bills in excess of $250 will be sent directly to you for payment. You acknowledge that our relationship with vendors will be adversely impacted if you do not pay such vendor bills promptly and such failure to pay vendors will permit Morrison Mahoney LLP to cease performing services on your behalf to the extent permitted by applicable rules and/or the court. You also agree that if we, in our sole discretion, pay such vendors on your behalf, we may include such charges to you on our monthly statements.

Monthly Statements

Morrison Mahoney LLP will send you monthly statements for services performed and costs advanced, payable within thirty (30) days of the billing date. (If a monthly statement is of a nominal amount, we may hold those charges to a subsequent month.) If you fail to pay the bills for legal services sent to you, Morrison Mahoney LLP will have the right to cease performing services on your behalf, to the extent permitted by applicable rules and/or the court.

You agree to notify us in writing or by email if you dispute any work, billing entry, expense or computation. If you fail to do so within thirty (30) days after the mailing thereof, all entries and work reflected shall be deemed by both you and us to be fair, reasonable and correct.

[Optional language: Interest will be charged at a rate of eighteen (18%) percent per annum on all unpaid bills for fees and costs. In the event we initiate any proceeding to recover fees or costs, you agree to be responsible for reasonable attorney’s fees, costs and interest at 18%.]

Retainer/Deposit

435 MORRISON MAHONEY LLP

Mr. Bad Shape Page [date]

Morrison Mahoney requires a retainer/deposit of $10,000 for this engagement. The funds you deposit with us will ordinarily be held until the end of the engagement and applied against the firm’s final invoice for services. Any excess will be refunded to you. Morrison Mahoney may, however, at any time and at its option apply these funds to any balance that has remained outstanding for more than 60 days. In such event, you agree to replenish the retainer/deposit, or furnish a larger retainer/deposit, as Morrison Mahoney reasonably believes may be necessary to insure payment of its final invoice.

[Option 2: Morrison Mahoney requires a retainer of $10,000 for this engagement. The funds you deposit with us will be held in our IOLTA account and applied against invoices for services rendered in the following manner: One week after delivering an invoice to you, unless we hear from you to the contrary, we will assume that you agree with the charges and we will transfer the total invoice due from our IOLTA account to a firm account. You agree to replenish the retainer, or furnish a larger retainer, as Morrison Mahoney reasonable believes may be necessary to insure payment of its final invoice. The amount of the retainer may change from time to time depending upon the projected budget for future work.

[Option 3: Morrison Mahoney will forego its standard practice and not require a retainer or deposit at this time. However, you agree that if Defective Widgets fails to pay any invoice for legal services within 60 days of the billing date, Defective Widgets will provide Morrison Mahoney with a deposit to hold, upon the firm’s request, equal to two times the largest invoice to date. Such funds would be held until the conclusion of the case and applied against the final invoice. As long as Defective Widgets is consistently current in its payment (i.e. payment within 60 days of the billing date), no retainer will ever become necessary.]

Termination of Agreement

Either of us may terminate the engagement at any time for any reason by providing written notice, subject on the part of Morrison Mahoney to comply with the requirements of any applicable rules of professional conduct or rules of court. You agree that we shall have the right to withdraw from representation if you do not make payments as required by this Agreement, or if you have misrepresented or failed to disclose material facts, or failed to follow advice after a course of action has been discussed, or if you insist on taking action which we consider repugnant or with which we have a fundamental disagreement. In any of these events, you will substi- tute attorneys at our request. Unless we agree to render additional services for you, Morrison Mahoney’s work for you will terminate upon our firm sending its final statement for services rendered in this matter.

436 MORRISON MAHONEY LLP

Mr. Bad Shape Page [date]

[Optional last sentence: The matter shall be deemed to be concluded and our representation under this Agreement terminated upon, at the latest, the entry of any final judgment in the trial court.]

[Optional insert if applicable to your practice: Trust Accounts and FDIC Insurance

We wish to bring to your attention how FDIC coverage of funds held in our trust account could be impacted by where you bank. Our firm's primary "pooled trust account" bank is at ______Bank("Trust Bank"). We have been assured by Trust Bank that our account is identified by it as a "pooled trust account", and, accordingly, each depositor to such account will be insured by the Federal Deposit Insurance Corporation ("FDIC") to the amount of $250,000 per depositor until December 31, 2013. However, for FDIC insurance purposes, any amount on deposit for a client will be aggregated by the FDIC with all other funds that such client may have at Trust Bank, and, the total insured amount must not exceed $250,000 to still be eligible for such FDIC protection. If protection greater than $250,000 is desired, Trust Bank is, under special circumstances, prepared to open a "special trust account" with a depositor having overnight "sweep" and "repurchase obligation" protections. It is your obligation to advise us if such protection is being requested.]

[Optional insert for Cloud storage:

Cloud Storage

Morrison Mahoney is please to use the services of Cloud Vendor X for management and storage of electronic data. All documents that are part of your file including but not limited to emails and documents provided by you or to you may be scanned and stored with Cloud Vendor X at its facilities instead of on a storage devices at our offices. All documents will be uploaded/downloaded and stored in a confidential manner in accordance with our firm’s rights and obligations to you as our client. This letter is intended to inform you of our firm’s relationship with this third-party vendor in order to provide you disclosure regarding the storage location of your file during our representation. Your signature below confirms your understanding of cloud storage and that your consent to same. If you believe that any information that you provide to us requires special protection, you agree to notify us in writing.]

Document Retention

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442 SECTION 4 Why Every Lawyer Should Be Interested in Cultural Competency

Articles by Ronald E. Wheeler Jr., Fineman & Pappas Law Libraries, Boston University School of Law, Boston

Helping Courts Address Implicit Bias ...... 445

Michael Brown, Eric Garner, and Law Librarianship ...... 469

Soft Skills—The Importance of Cultivating Emotional Intelligence ...... 479

We All Do It: Unconscious Behavior, Bias, and Diversity ...... 485

443

444 Helping Courts Address Implicit Bias Frequently Asked Questions*

1) What is Implicit Bias?

Unlike explicit bias (which reflects the attitudes or beliefs that one endorses at a conscious level), implicit bias is the bias in judgment and/or behavior that results from subtle cognitive processes (e.g., implicit attitudes and implicit stereotypes) that often operate at a level below conscious awareness and without intentional control. The underlying implicit attitudes and stereotypes responsible for implicit bias are those beliefs or simple associations that a person makes between an object and its evaluation that “...are automatically activated by the mere presence (actual or symbolic) of the attitude object” (Dovidio, Gaertner, Kawakami, & Hudson, 2002, p. 94; also Banaji & Heiphetz, 2010). Although automatic, implicit biases are not completely inflexible: They are malleable to some degree and manifest in ways that are responsive to the perceiver’s motives and environment (Blair, 2002).

Implicit bias research developed from the study of attitudes. Scientists realized long ago that simply asking people to report their attitudes was a flawed approach; people may not wish or may not be able to accurately do so. This is because people are often unwilling to provide responses perceived as socially undesirable and therefore tend to report what they think their attitudes should be rather than what they know them to be. More complicated still, people may not even be consciously aware that they hold biased attitudes. Over the past few decades, scientists have developed new measures to identify these unconscious biases (see FAQ #3: How is implicit bias measured?).

*Preparation of this project brief was funded by the Open Society Institute, the State Justice Institute, and the National Center for State Courts. The views expressed are those of the authors and do not necessarily reflect the views of the funding organizations. The document summarizes the National Center for State Courts’ project on implicit bias and judicial education. See Casey, Warren, Cheesman, and Elek (2012), available at www.ncsc.org/ibreport for the full report of the project. 1

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What do researchers think are 2) the sources of implicit bias?

Although scientists are still working to understand implicit bias, current theory and evidence indicate that it may arise from several possible sources (as listed by Rudman, 2004). These interrelated sources include:

Developmental History

Implicit bias can develop over time with the accumulation of personal experience. Personal experiences include not only traditional learning experiences between the self and the target (i.e., classical conditioning; Olson & Fazio, 2001), but also social learning experiences (i.e., via observing parents, friends, or influential others; Greenwald & Banaji, 1995). For example, implicit biases in children are positively correlated with the implicit biases of their parents; however, consistent with social learning theory (Bandura, 1997), this congruence occurs only between children who identify with their parents and not for children who do not have a positive attachment relationship with their parents (Sinclair, Dunn, & Lowery, 2005). Implicit biases can develop relatively quickly through such experiences: Implicit racial bias has been found in children as young as 6 years old, and discrepancies between implicit and explicit attitudes emerge by the age of 10 (Baron & Banaji, 2006).

Affective Experience

Implicit bias may develop from a history of personal experiences that connect certain racial groups with fear or other negative affect. Recent developments in the field of cognitive neuroscience demonstrate a link between implicit (but not explicit) racial bias and neural activity in the amygdala, a region in the brain that scientists have associated with emotional learning and fear conditioning. Specifically, White individuals who score highly on measures of implicit racial bias

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also react to images of unfamiliar Black faces with stronger amygdala activation (Phelps, O’Connor, Cunningham, Funayama, Gatenby, Gore, & Banaji, 2000; see also Stanley, Phelps, & Banaji, 2008). Other researchers have demonstrated a causal relationship between the experience of certain types of emotions and the emergence of implicit bias, showing that inducing people to experience anger or disgust can create implicit bias against newly encountered outgroups (Dasgupta, DeSteno, Williams, & Hunsinger, 2009). Another study found that increased exposure to a socially valued Black instructor in the context of a diversity education course decreased participants’ implicit bias against Blacks, and that a reduced fear of Blacks – in addition to other affective factors – predicted this attitudinal change (Rudman, Ashmore, & Gary, 2001).

Culture

People share a common social understanding of the stereotypes that are pervasive in our culture, and this knowledge can foster implicit bias even if a person does not necessarily endorse the cultural stereotype (Devine, 1989; Fazio, Jackson, Dunton, & Williams, 1995). One explanation is that people implicitly make associations and evaluations based on cultural knowledge in a way that “may not be available to introspection and may not be wanted or endorsed but is still attitudinal because of its potential to influence individual perception, judgment, or action” (Nosek, 2007, p. 68 [emphasis added]). Another explanation offered by Nosek (2007) is that responses on implicit measures are easily influenced by cultural knowledge, but that this cultural knowledge does not reflect the respondent’s actual attitude (e.g., Karpinski & Hilton, 2001).

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The Self

People tend to possess consistent and strongly positive attitudes toward themselves, and this positive attitude about the self can transfer very easily to other things, people, and groups that share attributes with the self (for a review, see Banaji & Heiphetz, 2010). This transference can occur without conscious awareness; hence, such effects are termed “implicit egotism.” For example, people demonstrate a biased preference for new products that resemble their own names (Brendl, Chattopadhyay, Pelham, & Carvallo, 2005). They appear to be disproportionately likely to live in locations that reflect their birth date (e.g., people born on February 2nd and residing in the town of Two Rivers, Wisconsin) and to choose careers or marry others with names that resemble their own (e.g., people named Dennis or Denise in dentistry, a marriage between two unrelated Smiths). They are also more attracted than usual to others who have been assigned an allegedly random experimental code number that matches their birth dates and whose alleged surnames share letters with their own surnames (Pelham, Mirenberg, & Jones, 2002; Jones, Pelham, Carvallo, & Mirenberg, 2004). Provocative and strange, this research illustrates the impressive automaticity of the human mind and the influence of implicit processes in our daily lives. Fundamental attitudes toward the self may underlie implicit racial bias by facilitating a general tendency to prefer one’s ingroup (a group with which one identifies in some way) over outgroups (any group with which one does not affiliate; see Greenwald, Banaji, Rudman, Farnham, Nosek, & Mellott, 2002). As Rudman (2004) explains, people tend to believe that “If I am good and I am X [X being any social group with which one identifies], then X is also good” (p. 137; italicized text added).

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3) How is Implicit Bias measured? Researchers use a number of scientific methods in the measurement of implicit bias (for reviews, see Fazio & Olson, 2003; Gawronski, 2009; Wittenbrink & Schwarz, 2007). Although the specific procedures involved in the individual approaches differ widely, implicit measures take on one of the following three general forms:

Computerized Measures

Computerized implicit measures typically gauge the direction and strength of a person’s implicit attitudes by assessing their reaction times (i.e., response latencies) when completing a specific computerized task. The exact nature of each task varies, but usually falls into one of two classes of procedures (see Wittenbrink & Schwarz, 2007): sequential priming or response competition.

Sequential priming procedures. Sequential priming procedures are based on a long history of evidence in the field of cognitive psychology demonstrating that when two concepts are related in memory, the presentation of one of those concepts facilitates the recall or recognition of the other (see Neely, 1991). In the context of racial bias, people with a negative implicit racial bias toward Blacks will more quickly and easily respond to concepts associated with the negative stereotype of Blacks than concepts that are not associated with that stereotype. One popular procedure for measuring this phenomenon is the evaluative priming task or “bona-fide pipeline” (Fazio, Sanbonmatsu, Powell, & Kardes, 1986). In this task, respondents are briefly presented with a Black or White face immediately before a positive or negative target word appears on the screen. They must then identify, as quickly as possible, the meaning of the presented word as “good” or “bad.” In the standard paradigm, respondents with racial bias more quickly identify negative words as “bad” and more slowly identify positive

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words as “good” when that word appears immediately after the presentation of a Black face (Fazio, et al., 1995). A similar priming procedure, called the Affect Misattribution Procedure (AMP; Payne, Cheng, Govorun, & Stewart, 2005), briefly presents respondents with a prime of a Black or White face before viewing a neutral Chinese character they know they must evaluate as more or less visually pleasant than the average Chinese character. These researchers found that individuals’ racial attitudes colored their evaluations of the characters, with White respondents reporting more favorable ratings for characters that appeared after White primes than Black primes. This effect emerged even when respondents received a forewarning about the influence of the racial primes on subsequent evaluations.

Response competition procedures. Another approach to implicit attitude measurement emerged from research on interference effects. Specifically, when a target has multiple different meanings (e.g., the word “red” written in blue font), these different meanings can imply competing responses (e.g., color identification as red or blue) in a given task that can slow down the overall performance of the respondent (note that the well-known Stroop effect is one example of interference effects at work; see Stroop, 1935; MacLeod, 1991). These implicit measures, called response competition procedures (Wittenbrink & Schwarz, 2007), takes advantage of the informational value of interference effects by presenting two competing categorization tasks in a single procedure and measuring response latencies. Thus, unlike the sequential priming procedures discussed above in which shorter response times indicate bias, longer response times denote implicit bias when response competition procedures are used. One of the most popular of these types of measures is the Implicit Association Test (IAT; Greenwald, McGhee, & Schwartz, 1998). In the IAT, respondents are asked to categorize a sequence of images (as a Black or White face) and words (as either good or bad) by pressing one of two pre- labeled buttons. For example, the respondent may be instructed to press the left

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button whenever they see a Black face or whenever a negative word appears, and to press the right button whenever they see a White face or a positive word. Alternatively, they may be informed to press one button when they see a Black face or positive word, and the other button for a White face or negative word. Because of interference effects, individuals who associate “Black” with “bad,” for example, will respond much more slowly when “Black” and “good” share the same response button. Related measures include the Go/No-Go Association Task (GNAT; see Nosek & Banaji, 2001) and the Extrinsic Affective Simon Task (EAST; see De Houwer, 2003).

Paper & Pencil Measures

Several paper & pencil measures of implicit attitudes exist (see Vargas, Sekaquaptewa, & von Hippel, 2007 for a review). Some of these measures are simply adaptations of existing computerized assessments. Although researchers have primarily focused on developing manual adaptations of the IAT (e.g., Kitayama & Uchida, 2003; Lemm, Sattler, Khan, Mitchell, & Dahl, 2002), Vargas and colleagues (2007) suggest that the AMP (see description under “Computerized Measures,” above) may be more easily adapted to a paper & pencil format because the procedure does not involve measurement of response time.

Other paper & pencil implicit measures assess memory accessibility. One example is the Word Fragment Completion (WFC) task, in which people are presented with fragments of words (e.g., POLI_E) and are asked to fill in the missing letters. These word fragments, however, can be completed in stereotypic or non-stereotypic ways (e.g., POLITE, POLICE; Gilbert & Hixon, 1991). The number of stereotypic word completions in the WFC task has been used as an implicit measure of racial prejudice (e.g., Son Hing, Li, & Zanna, 2002).

Finally, two other implicit bias measurement approaches assess attributional processing styles. One such example is the Stereotypic Explanatory Bias (SEB;

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Sekaquaptewa, Espinoza, Thompson, Vargas, & von Hippel, 2003), which is the tendency to ascribe the stereotype-consistent behavior of minorities to factors intrinsic to the individual (e.g., trait or dispositional attributions like hard work or talent), but stereotype-inconsistent behavior to extrinsic, situational factors (e.g., the weather, luck). Similarly, the Linguistic Intergroup Bias (LIB; Maass, Salvi, Arcuri, & Semin, 1989) is the tendency to describe stereotypic behavior using abstract language (e.g., by ascribing the behavior to a global trait) but non-stereotypic behavior using concrete language (e.g., by describing the behavior as a specific event). By carefully examining the respondent’s choice of language or agreement with particular summaries of a behavioral event, researchers have used these tendencies as indicators of implicit prejudice (see von Hippel, Sekaquaptewa, & Vargas, 1997 and Sekaquaptewa, et al. 2003).

Physiological Measures

Psychologists have long expressed interest in determining the physiological correlates of psychological phenomena. Those interested in the study of intergroup attitudes have examined autonomic nervous system responses such as the amount of sweat produced (e.g., Rankin & Campbell, 1955), heart rate (e.g., Shields & Harriman, 1984), and even small facial muscle movements that are nearly imperceptible to the untrained human eye (e.g., Vanman, Saltz, Nathan, & Warren, 2004; Mahaffey, Bryan, & Hutchison, 2005). More recently, neuroscientists have attempted to understand the neural underpinnings of implicit bias (e.g., Stanley, Phelps, & Banaji, 2008; Cunningham, Johnson, Gatenby, Gore, & Banaji, 2003). With further technological advances in physiological measurement, researchers will gain greater insight into the connection between psychological and physiological phenomena that could make some physiological techniques invaluable in the measurement and study of implicit bias. Given the current state of the science, however, the following common techniques are appropriate for advancing scientific understanding of implicit bias, but not for the detection of implicit bias (i.e., “diagnosing” implicit bias in an individual). Frequently Asked Questions 8

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Common physiological measures used in the study of attitudes (as described more thoroughly in reviews by Banaji & Heiphetz, 2010; Blascovich & Mendes; 2010, and Ito & Cacioppo, 2007) include:

EDA. The measurement of sweat production is interchangeably referred to as skin conductance response (SCR), galvanic skin response (GSR), and electrodermal activity (EDA). When an individual experiences greater arousal in response to a stimulus, the eccrine glands in the skin (particularly in the hands and feet) excrete more sweat (Banaji & Heiphetz, 2010, p. 363). However, sweat production as a response and, therefore, EDA as a measurement tool do not discriminate between positive and negative responses to a stimulus. That is, by itself, EDA provides no information about the valence of the individual’s response, but simply detects arousal. For example, as Banaji & Heiphetz (2010) explain, greater EDA in the presence of Black individuals but not White individuals (Rankin & Campbell, 1955) indicates only that the respondent reacts more strongly to the Black individual, and not that the reaction is necessarily a negative one.

Cardiovascular responses. Although a number of techniques have been used to measure cardiac and vasomotor responses, the most common measurement is that of heart rate. Like EDA, heart rate is a valence-insensitive measure of autonomic nervous system arousal and therefore cannot be used to distinguish between positive and negative reactions to a stimulus.

EMG. Facial electromyography (EMG) is the measurement of electrical activity associated with facial muscle contractions. With this technique, researchers can detect the presence of muscle movements and measure the amplitude of the response. Unlike some of the earlier measures discussed, however, the facial EMG can be used to assess response valence because different facial muscles are associated with positive and negative reactions. One study found that greater cheek EMG activity towards Whites than Blacks predicted racial

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bias in participant selection decisions when evaluating candidates for a teaching fellowship (Vanman, Saltz, Nathan, & Warren, 2004). Unlike the IAT, the facial EMG remained unaffected by participants’ motivation to control for prejudiced responses, indicating its potential value as a measure of implicit attitudes.

Another physiological measure, the startle eyeblink response, relies on similar response mechanisms; however, only highly arousing stimuli evoke a startle response, limiting the utility of this measurement approach.

fMRI. Functional magnetic resonance imaging (fMRI) is a relatively new technique that measures blood flow in the brain. Because increased blood flow in any specific region of the brain signals increased activity in that region, blood flow can be used as a proxy measure for neural activity. In a groundbreaking study, Phelps, O’Connor, Cunningham, Funayama, Gatenby, Gore, and Banaji (2000) demonstrated a correlation between the degree of activation in the amygdala region of the brain, as measured by fMRI, and scores on the IAT; moreover, people exhibit greater amygdala activation when processing negative, rather than positive, stimuli (Cunningham, Johnson, Gatenby, Gore, & Banaji, 2003). Although other brain areas are involved in social cognitive processes like implicit bias, the amygdala has been extensively studied because it is so important to evaluation and preference development (Banaji & Heiphetz, 2010).

ERP. Event-related brain potentials (ERPs) are measurable electrical signals emitted by brain activity (i.e., neural firing) and provide information on the strength and valence of a person’s response to a stimulus. Because this technique measures real-time changes (within milliseconds) in neural activity, researchers can correlate individual ERP data with specific temporal events (e.g., changes in brain activity from a baseline measurement after exposure to a photo of a Black man). Several specific components of ERPs (e.g., larger late-positive potentials or LPPs; Ito, Thompson, & Cacioppo, 2004) provide information about an individual’s responses to others that are related to implicit bias (for more information, see Ito & Cacioppo, 2007, pp. 134-138). Frequently Asked Questions 10

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Does Implicit Bias matter much in the 4) real world?

A recent meta-analysis of 122 research reports found that one implicit measure (the IAT) effectively predicted bias in a range of relevant social behaviors, social judgments, and even physiological responses (r = .274; Greenwald, Poehlman, Uhlmann, & Banaji, 2009). Implicit bias can influence a number of professional judgments and actions in the “real world” (see Jost, Rudman, Blair, Carney, Dasgupta, Glaser & Hardin, 2009) that may have legal ramifications.

Some particularly relevant examples are:

Police Officers: The Decision to Shoot

Police officers face high-pressure, high-risk decisions in the line of fire. One seminal research report reveals that these rapid decisions are not immune to the effects of implicit biases. Specifically, college participants in this study played a computer game in which they needed to shoot dangerous armed characters as quickly as possible (by pressing a “shoot” button), but decide not to shoot unarmed characters (by pressing a “don’t shoot” button). Some of the characters held a gun, like a revolver or pistol, and some of the characters held innocuous objects, like a wallet or cell phone. In addition, half of the characters were White, and half were Black. Study participants more quickly chose to shoot armed Black characters than armed White characters and more quickly chose not to shoot unarmed White characters than unarmed Black characters. They also committed more “false alarm” errors, electing to shoot unarmed Black characters more than unarmed White characters and electing not to shoot armed White characters more than armed Black characters (Correll, Park, Judd, & Wittenbrink, 2002). This research was inspired by the 1999 New York City shooting of Guinean immigrant Amadou Diallo: Police officers fired 41 rounds and killed Diallo as he

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pulled out a wallet. Other studies produced similar results with police officers and community members, and also showed that training and practice can help to reduce this bias (e.g., Correll, Park, Judd, Wittenbrink, Sadler, & Keesee, 2007; Plant & Peruche, 2005; Plant, Peruche, & Butz, 2005).

Physicians: Treatment Decisions

Physicians routinely make crucial decisions about medical care for patients whose lives hang in the balance. In the face of such high stakes, it may be surprising to think that automatic associations can unknowingly bias professional decision- making. One study showed that the implicit racial biases of ER physicians predicted fewer thrombolysis treatment recommendations when the patient was described as Black as opposed to White (Green, Carney, Pallin, Ngo, Raymond, Iezzoni, & Banaji, 2007). The implicit racial biases of White physicians also seem to play a role in predicting how positively or negatively Black patients respond to the medical interaction (Penner, Dovidio, West, Gaertner, Albrecht, Daily, & Markova, 2010), which might lead to a greater incidence of malpractice lawsuits (cf. Stelfox, Gandhi, Orav, & Gustafson, 2005).

Managers: Hiring Decisions

When screening a pool of job candidates, hiring managers must review hundreds if not thousands of resumes of qualified applicants. Studies show that interview and selection decisions reflect bias against minorities (e.g., Dovidio & Gaertner, 2000; Bertrand & Mullainathan, 2004; Ziegert & Hanges, 2005). In one such study, hiring managers were three times less likely to call highly qualified Arab job candidates in for an interview compared to equally qualified candidates of the racial majority. Interestingly, the implicit racial bias scores of hiring managers predicted their likelihood of offering callbacks to the Arab job applicants (Rooth, 2010).

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Judges and Jurors: Capital Punishment and Sentencing

If implicit biases can affect both the intuitive, split-second decisions of police officers and sway the more deliberate decisions of physicians and hiring managers, it stands to reason that judges and jurors may exhibit similar tendencies. Indeed, one archival study of 600 death-eligible cases in Philadelphia appears to support this possibility. Researchers identified all cases (n=44) in which a Black male defendant was convicted of murdering a White victim and presented a photograph of each defendant to participants, who in turn rated each defendant on how “stereotypically Black” he appeared to be. Stereotypicality of appearance predicted death penalty sentencing outcomes: 57.5% of those judged as more stereotypically Black were sentenced to death, compared to 24.4% of those who were perceived as less stereotypically Black (Eberhardt, Davies, Purdie-Vaughns, & Johnson, 2006). Eberhardt and colleagues explain this effect in the context of other empirical research (Eberhardt, Goff, Purdie, & Davies, 2004) that demonstrates a tendency to implicitly associate Black Americans with crime. Other studies further illustrate racial biases in the context of detain-release decisions, verdicts, and sentencing (e.g., Gazal-Ayal & Sulitzeanu-Kenan, 2010; Sommers & Ellsworth, 2001).

Voters and Other Decision-Makers

Other research also shows that implicit racial biases can predict voting intentions and behavior. In one study of 1,057 registered voters, pro-White implicit bias scores predicted reported intent to vote for McCain over Obama a week before the 2008 U.S. Presidential election (Greenwald, Smith, Sriram, Bar-Anan, & Nosek, 2009). Another study found that, after controlling for explicit prejudice, voters who were more implicitly prejudiced against Blacks were less likely to vote for Obama and more likely to abstain from the vote or vote for third party candidates (Payne, Krosnick, Pasek, Lelkes, Akhtar, & Tompson, 2010). Implicit biases may, in particular, help “tip the scales” for undecided decision-makers (e.g., Galdi, Arcuri, & Gawronski, 2008). Frequently Asked Questions 13

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What are the key criticisms of 5) Implicit Bias research?

The mounting research evidence on the phenomenon of implicit bias may lead to two disconcerting conclusions: (1) People know less about their own mental processes than common sense would suggest, and (2) overt racism may be diminishing, but subtler forms of racism persist. As is often the case with provocative science, this program of research has its proponents and its skeptics. Scholarly debate revolves primarily around the definition and appropriate measurement of implicit bias, and some have questioned the existence of implicit bias as an attitudinal phenomenon.

Some individuals stridently resist the idea of implicit racial prejudice and are vocal about their opposition (e.g., Mitchell & Tetlock, 2006; Wax & Tetlock, 2005). These individuals argue that they are “under no obligation to agree when a segment of the psychological research community labels the vast majority of the American population unconsciously prejudiced on the basis of millisecond reaction-time differentials on computerized tests. It is our view that the legal community should require evidence that scores on these tests of unconscious prejudice map in replicable functional forms onto tendencies to discriminate in realistic settings…” and that, because of this and because the IAT is informed by a variety of factors that “cannot plausibly be labeled precursors to discrimination,” the IAT does not tap into “100% pure prejudice” (Mitchell & Tetlock, 2009).

In response to these criticisms, the proponents of implicit bias argue that the large body of research over several decades and hundreds of neuroscientific, cognitive, and social psychological studies has produced sufficient if not overwhelming evidence to support the existence of the kinds of automatic negative associations referred to as “implicit bias” (for a review and one of many direct responses to the opposing allegations of Tetlock and colleagues,

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see Jost et al., 2009). An exponentially increasing number of empirical studies demonstrate a relationship between measures of implicit bias and real-world discriminatory behavior (see FAQ #4: Does Implicit Bias Matter Much in the Real World?, above). Moreover, attitudes are flexible constructs—not rigid ones— and one’s expressed attitude at any given moment is responsive to a variety of relevant and seemingly irrelevant factors. For example, one now-classic study showed that people’s judgments of even their own life satisfaction could be influenced by incidental factors such as the weather (i.e., sunny or cloudy) on the day they were surveyed (Schwarz & Clore, 1983). Similarly, the expression of implicit bias is sensitive to a range of sometimes subtle moderating factors (e.g., see Blair, 2002).

A key component of the implicit bias controversy is the concern that the IAT, specifically, is problematic. Some believe that proponents of the IAT overstate the consequentiality of their research findings (e.g., Blanton & Jaccard, 2008; Blanton & Jaccard, 2006), and others argue that although evaluative priming measures may be construed as “automatic evaluations,” what exactly the IAT technique measures is debatable (Fazio & Olson, 2003). Indeed, the IAT and a popular evaluative priming implicit measure, the bona-fide pipeline, fail to show correspondence with one another even though both are supported by empirical evidence demonstrating correspondence with actual behavior (Olson & Fazio, 2003). These researchers and others (e.g., Karpinski & Hilton, 2001) argue that the IAT measures not attitudes but extrapersonal associations acquired through the environment, whether those associations are personally endorsed at an attitudinal level or not. In response to this assertion, Nosek (2007) argues that regardless of whether these implicit processes are labeled as attitudes or as associations, the effect is still the same: These automatic processes are capable of guiding our thoughts and actions in predictable—and biased—ways.

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Opponents of the IAT have gone on to propose a number of alternative explanations to discount the IAT as a measure of implicit bias, although variation in the interpretation of how the phenomenon is defined may be partly responsible for this scholarly discord. Proponents of the IAT have thus far presented evidence discrediting several, but not all, of these alternative explanations (e.g., Dasgupta, Greenwald, & Banaji, 2003; Nosek, Greenwald, & Banaji, 2005; Greenwald, Nosek, & Banaji, 2003; see Dr. Anthony Greenwald’s IAT Page for a complete listing of relevant research). These disparate views will likely be resolved as the science advances and new methods for the measurement of implicit bias are developed.

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What can people do to mitigate the 6) effects of Implicit Bias on judgement and behavior? Once people are made aware of their own implicit biases, they can begin to consider ways in which to address them. Scientists have uncovered several promising implicit bias intervention strategies that may help individuals who strive to be egalitarian:

• Consciously acknowledge group and individual differences (i.e., adopt a multiculturalism approach to egalitarianism rather than a color-blindness strategy in which one tries to ignore these differences) • Routinely check thought processes and decisions for possible bias (i.e., adopt a thoughtful, deliberative, and self-aware process for inspecting how one’s decisions were made) • Identify sources of stress and reduce them in the decision-making environment • Identify sources of ambiguity and impose greater structure in the decision- making context • Institute feedback mechanisms • Increase exposure to stereotyped group members (e.g., seek out greater contact with the stigmatized group in a positive context)

For more detailed information on promising debiasing strategies, see Appendix G in Casey, et al. (2012).

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461 Helping Courts Address Implicit Bias

Can people eliminate or change an 7) Implicit Bias?

There is a difference between reducing the influence of implicit bias on decisions (see FAQ #6: What can people do to mitigate the effects of implicit bias on judgment and behavior?) and reducing implicit bias itself. Although implicit bias is malleable, many “debiasing” strategies seem to only temporarily reduce or shift it. Longer-term change might be possible only through substantial and persistent effort (for a discussion about the conditional limitations of some existing strategies for reducing implicit bias, see Joy-Gaba & Nosek, 2010).

If applied long-term, people may be able to reduce or eliminate implicit bias by modifying their underlying implicit attitudes. Generally, increased contact with or exposure to a stigmatized social group in a positive context may reduce prejudice toward that group over time (e.g., Binder, Zagefka, Brown, Funke, Kessler, Mummendey, et al., 2009) and may even reduce prejudice toward other out-groups in general (Tausch, Hewstone, Kenworthy, Psaltis, Schmid, Popan, et al., 2010). Reductions in implicit bias, specifically, have occurred as a result of longer-term exposure to minorities in socially valued roles (Dasgupta & Rivera, 2008; Dasgupta & Asgari, 2004), in the context of diversity education (Rudman, Ashmore, & Gary, 2001), and even as a result of simply imagining (rather than actually encountering) counter-stereotypes (Blair, Ma, & Lenton, 2001). In addition, some research indicates that people who have developed chronic egalitarian goals may be able to beat implicit bias at its own game by automatically inhibiting implicit stereotypes (e.g., Moskowitz & Li, 2011; Moskowitz, Salomon, & Taylor, 2000).

Frequently Asked Questions 18

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References

Banaji, M., & Heiphetz, L. (2010). Attitudes. In S. Fiske, D. Gilbert, & G. Lindzey (Eds.), Handbook of social psychology, 5th edition (pp. 348-388). New York: Wiley.

Bandura, A. (1997). Self-efficacy: The exercise of control. New York: W.H. Freeman.

Baron, A., & Banaji, M. (2006). The development of implicit attitudes: Evidence of race evaluations from ages 6 and 10 and adulthood. Psychological Science, 17, 53-58.

Bertrand, M., & Mullainathan, S. (2004). Are Emily and Greg more employable than Lakisha and Jamal? A field experiment on labor market discrimination. American Economic Review, 94, 991-1013.

Binder, J., Zagefka, H., Brown, R., Funke, F., Kessler, T., Mummendey, A., et al. (2009). Does contact reduce prejudice or does prejudice reduce contact? A longitudinal test of the contact hypothesis among majority and minority groups in three European countries. Journal of Personality and Social Psychology, 96, 843-856.

Blair, I. (2002). The malleability of automatic stereotypes and prejudice. Personality and Social Psychology Review, 6, 242-261.

Blair, I., Ma, J., & Lenton, A. (2001). Imagining stereotypes away: The moderation of implicit stereotypes through mental imagery. Journal of Personality and Social Psychology, 81, 828-841.

Blanton, H., & Jaccard, J. (2006). Arbitrary metrics in psychology. American Psychologist, 61, 27-41.

Blanton, H., & Jaccard, J. (2008). Unconscious racism: A concept in pursuit of a measure. Annual Review of Sociology, 34, 277-297.

Blascovich, J., & Mendes, W. (2010). Social psychophysiology and embodiment. In S. Fiske, D. Gilbert, & G. Lindzey (Eds.), Handbook of social psychology, 5th edition. New York: Wiley.

Brendl, C., Chattopadhyay, A., Pelham, B., & Carvallo, M. (2005). Name letter branding: Valence transfers when product specific needs are active. Journal of Consumer Research, 32, 405-415.

Casey, P., Warren, R., Cheesman, F., & Elek, J. (2012). Helping courts address implicit bias: Resources for education. Williamsburg, VA: National Center for State Courts.

Correll, J., Park, B., Judd, C., & Wittenbrink, B. (2002). The police officer’s dilemma: Using ethnicity to disambiguate potentially threatening individuals. Journal of Personality and Social Psychology, 83, 1314-1329.

Correll, J., Park, B., Judd, C., Wittenbrink, B., Sadler, M., & Keesee, T. (2007). Across the thin blue line: Police officers and racial bias in the decision to shoot. Journal of Personality and Social Psychology, 92, 6, 1006-1023. doi:10.1037/0022-3514.92.6.1006

Frequently Asked Questions 19

463 Helping Courts Address Implicit Bias

Cunningham, W., Johnson, M., Gatenby, J., Gore, J., & Banaji, M. (2003). Neural components of social evaluation. Journal of Personality and Social Psychology, 85, 639-649.

Dasgupta, N., & Asgari, S. (2004). Seeing is believing: Exposure to counterstereotypic women leaders and its effect on the malleability of automatic gender stereotyping. Journal of Experimental Social Psychology, 40, 642-658.

Dasgupta, N., DeSteno, D., Williams, L., & Hunsinger, M. (2009). Fanning the flames of prejudice: The influence of specific incidental emotions on implicit prejudice. Emotion, 9, 585-591.

Dasgupta, N., Greenwald, A., & Banaji, M. (2003). The first ontological challenge to the IAT: Attitude or mere familiarity? Psychological Inquiry, 14, 238-243.

Dasgupta, N., & Rivera, L. (2008). When social context matters: The influence of long-term contact and short-term exposure to admired outgroup members on implicit attitudes and behavioral intentions. Social Cognition, 26, 112-123.

De Houwer, J. (2003). The Extrinsic Affective Simon Task. Experimental Psychology, 50, 77-85.

Devine, P. (1989). Stereotypes and prejudice: Their automatic and controlled components. Journal of Personality and Social Psychology, 56, 680-690.

Dovidio, J., & Gaertner, S. (2000). Aversive racism and selection decisions: 1989 and 1999. Psychological Science, 11, 315-319.

Dovidio, J., Gaertner, S., Kawakami, K., & Hodson, G. (2002). Why can’t we just get along? Interpersonal biases and interracial distrust. Cultural Diversity and Ethnic Minority Psychology, 8, 88-102.

Eberhardt, J., Davies, P., Purdie-Vaughns, V. & Johnson, S. (2006). Looking deathworthy: Perceived stereotypicality of Black defendants predicts capital-sentencing outcomes. Psychological Science, 17, 383-386.

Eberhardt, J., Goff, P., Purdie, V., & Davies, P. (2004). Seeing Black: Race, crime, and visual processing. Journal of Personality and Social Psychology, 87, 876-893.

Fazio, R., Jackson, J., Dunton, B., & Williams, C. (1995). Variability in automatic activation as an unobtrusive measure of racial attitudes: A bona fide pipeline? Journal of Personality and Social Psychology, 69, 1013-1027.

Fazio, R., & Olson, M. (2003). Implicit measures in social cognition research: Their meaning and use. Annual Review of Psychology, 54, 297-327.

Fazio, R., Sanbonmatsu, D., Powell, M., & Kardes, F (1986). On the automatic activation of attitudes. Journal of Personality and Social Psychology, 50, 229-238.

Galdi, S., Arcuri, L., & Gawronski, B. (2008). Automatic mental associations predict future choices of undecided decision-makers. Science, 321, 1100-1102.

Frequently Asked Questions 20

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Gawronski, B. (2009). Ten frequently asked questions about implicit measures and their frequently supposed, but not entirely correct answers. Canadian Psychology, 50, 141-150.

Gazal-Ayal, O., & Sulitzeanu-Kenan, R. (2010). Let my people go: Ethnic in-group bias in judicial decisions - Evidence from a randomized natural experiment. Journal of Empirical Legal Studies, 7, 403-428.

Gilbert, D., & Hixon, J. (1991). The trouble of thinking: Activation and application of stereotypic beliefs. Journal of Personality and Social Psychology, 60, 509-517.

Green, A., Carney, D., Pallin, D., Ngo, L., Raymond, K., Iezzoni, L., & Banaji, M. (2007). The presence of implicit bias in physicians and its prediction of thrombolysis decisions for Black and White patients. Journal of General Internal Medicine, 22, 1231-1238.

Greenwald, A., & Banaji, M. (1995). Implicit social cognition: Attitudes, self-esteem, and stereotypes. Psychological Review, 102, 4-27.

Greenwald, A., Banaji, M., Rudman, L., Farnham, S. Nosek, B., & Mellot, D. (2002). A unified theory of implicit attitudes, stereotypes, self-esteem, and self-concept. Psychological Review, 109, 3-25.

Greenwald, A., McGhee, D., & Schwartz, J. (1998). Measuring individual differences in implicit cognition: The Implicit Association Test. Journal of Personality and Social Psychology, 74 , 1464-1480.

Greenwald, A., Nosek, B., & Banaji, M. (2003). Understanding and using the Implicit Association Test: I. An improved scoring algorithm. Journal of Personality and Social Psychology, 85, 197-216.

Greenwald, A., Poehlman, T., Uhlmann, E., & Banaji, M. (2009). Understanding and using the Implicit Association Test: III. Meta-analysis of predictive validity. Journal of Personality and Social Psychology, 97, 17-41.

Greenwald, A., Smith, C., Sriram, N., Bar-Anan, Y., Nosek, B. (2009). Implicit race attitudes predicted vote in the 2008 U.S. presidential election. Analyses of Social Issues and Public Policy, 9, 241-253.

Ito, T., & Cacioppo, J. (2007). Attitudes as mental and neural states of readiness. In B. Wittenbrink and N. Schwarz (Eds.), Implicit measures of attitudes (pp. 125-158). New York: Guilford.

Ito, T., Thompson, E., & Cacioppo, J. (2004). Tracking the timecourse of social perception: The effects of racial cues on event-related brain potentials. Personality and Social Psychology Bulletin, 30, 1267-1280.

Jones, J., Pelham, B., Carvallo, M., & Mirenberg, M. (2004). How do I love thee? Let me count the Js: Implicit egotism and interpersonal attraction. Journal of Personality and Social Psychology, 87, 665-683.

Frequently Asked Questions 21

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Jost, J., Rudman, L., Blair, I., Carney, D., Dasgupta, N., Glaser, J., et al. (2009). The existence of implicit bias is beyond reasonable doubt: A refutation of ideological and methodological objections and executive summary of ten studies that no manager should ignore. Research in Organizational Behavior, 29, 39-69.

Joy-Gaba, J., & Nosek, B. (2010). The surprisingly limited malleability of implicit racial evaluations. Social Psychology, 41, 137-146.

Karpinski, A., & Hilton, J. (2001). Attitudes and the Implicit Association Test. Journal of Personality and Social Psychology, 81, 774-788.

Kitayama, S., & Uchida, Y. (2003). Explicit self-criticism and implicit self-regard: Evaluating self and friend in two cultures. Journal of Experimental Social Psychology, 39, 476-482.

Lemm, K., Sattler, D., Khan, S., Mitchell, R., & Dahl, J. (2002). Reliability and validity of a paper- based implicit association test. Paper presented at the fourth annual convention of the Society for Personality and Social Psychology, Savannah, GA.

Maass, A., Salvi, D., Arcuri, L., & Semin, G. (1989). Language use in intergroup contexts: The linguistic intergroup bias. Journal of Personality and Social Psychology, 57, 981-993.

MacLeod, C. (1991). Half a century of research on the Stroop effect: An integrative review. Psychological Bulletin, 109,163–203.

Mahaffey, A., Bryan, A., & Hutchison, K. (2005). Using startle eye blink to measure the affective component of antigay bias. Basic and Applied Social Psychology, 35, 537-545.

Mitchell, G., & Tetlock, P. (2006). Antidiscrimination law and the perils of mindreading. Ohio State Law Journal, 67, 1023-1122.

Mitchell, G., & Tetlock, P. (2009). Facts do matter: A reply to Bagenstos. Hofstra Law Review, 37, 737-762.

Moskowitz, G., & Li, P. (2011). Egalitarian goals trigger stereotype inhibition: A proactive form of stereotype control. Journal of Experimental Social Psychology, 47, 103-116.

Moskowitz, G., Salomon, A., & Taylor, C. (2000). Preconsciously controlling stereotyping: Implicitly activated egalitarian goals prevent the activation of stereotypes. Social Cognition, 18, 151-177.

Neely, J. H. (1991). Semantic priming effects in visual word recognition: A selective review of current findings and theories. In D. Besner, & G. W. Humphreys (Eds.), Basic processes in reading (pp. 264–336).Hillsdale, NJ: Lawrence Erlbaum Associates.

Nosek, B. (2007). Implicit-explicit relations. Current Directions in Psychological Science, 16, 65-69.

Nosek, B., & Banaji, M. (2001). The Go/No-go Association Task. Social Cognition, 19, 626-666.

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Nosek, B., Greenwald, A., & Banaji, M. (2005). Understanding and using the Implicit Association Test: II. Method variables and construct validity. Personality and Social Psychology Bulletin, 31, 166-180.

Olson, M., & Fazio, R. (2001). Implicit attitude formation through classical conditioning. Psychological Science, 12, 413-417.

Olson, M., & Fazio, R. (2003). Relations between implicit measures of prejudice: What are we measuring? Psychological Science, 14, 636-639.

Payne, K., Cheng, C., Govorun, O., & Stewart, B. (2005). An inkblot for attitudes: Affect misattribution as implicit measurement. Journal of Personality and Social Psychology, 89, 277-293.

Payne, K., Krosnick, J., Pasek, J., Leikes, Y., Ahktar, O., & Thompson, T. (2010). Implicit and explicit prejudice in the 2008 American presidential election. Journal of Experimental Psychology, 46, 367-374.

Pelham, B., Mirenberg, M., & Jones, J. (2002). Why Susie sells seashells by the seashore: Implicit egotism and major life decisions. Journal of Personality and Social Psychology, 82, 469-487.

Penner, L., Dovidio, J., West, T., Gaertner, S., Albrecht, T., Dailey, R., & Markova, T. (2010). Aversive racism and medical interactions with Black patients: A field study. Journal of Experimental Social Psychology, 46, 436-440.

Phelps, E., O’Connor, K., Cunningham, W., Funayama, E., Gatenby, J., Gore, J., & Banaji, M. (2000). Performance on indirect measures of race evaluation predicts amygdale activation. Journal of Cognitive Neuroscience, 12, 729-738.

Plant, E., & Peruche, B. (2005). The consequences of race for police officers’ responses to criminal suspects. Psychological Science, 16, 180-183.

Plant, E., Peruche, B., & Butz, D. (2005). Eliminating automatic racial bias: Making race non-diagnostic for responses to criminal suspects. Journal of Experimental Social Psychology, 41, 141-156.

Rankin, R., & Campbell, D. (1955). Galvanic skin response to Negro and white experimenters. Journal of Abnormal and Social Psychology, 51, 30-33.

Rooth, D. (2010). Automatic associations and discrimination in hiring: Real world evidence. Labour Economics, 17, 523-534.

Rudman, L. (2004). Social justice in our minds, homes, and society: The nature, causes, and consequences of implicit bias. Social Justice Research, 17, 129-142.

Rudman, L., Ashmore, R., & Gary, M. (2001). “Unlearning” automatic biases: The malleability of implicit prejudice and stereotypes. Journal of Personality and Social Psychology, 81, 856-868.

Schwarz, N., & Clore, G. (1983). Mood, misattribution, and judgments of well-being: Informative and directive functions of affective states. Journal of Personality and Social Psychology, 45, 513-523. Frequently Asked Questions 23

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Sekaquaptewa, D., Espinoza, P., Thompson, M., Vargas, P., & von Hippel, W. (2003). Stereotypic explanatory bias: Implicit stereotyping as a predictor of discrimination. Journal of Experimental Social Psychology, 39, 75-82.

Shields, S., & Harriman, R. (1984). Fear of male homosexuality: Cardiac responses of low and high homonegative males. Journal of Homosexuality, 10, 53-67.

Sinclair, S., Dunn, E., & Lowery, B. (2005). The relationship between parental racial attitudes and children’s implicit prejudice. Journal of Experimental Social Psychology, 41, 283-289.

Sommers, S., & Ellsworth, P. (2001). White juror bias: An investigation of prejudice against Black defendants in the American courtroom. Psychology, Public Policy, and Law, 7, 201-229.

Son Hing, L., Li, W., & Zanna, M. (2002). Inducing hypocrisy to reduce prejudicial responses among aversive racists. Journal of Experimental Social Psychology, 38, 71-78.

Stanley, D., Phelps, E., & Banaji, M. (2008). The neural basis of implicit attitudes. Current Directions in Psychological Science, 17, 164-170.

Stelfox, H., Gandhi, T., Orav, E., & Gustafson, M. (2005). The relation of patient satisfaction with complaints against physicians and malpractice lawsuits. American Journal of Medicine, 118, 1126-1133.

Stroop, J. (1935). Studies of interference in serial verbal reactions. Journal of Experimental Psychology, 18, 643–662.

Tausch, N., Hewstone, M., Kenworthy, J., Psaltis, C., Schmid, K., Popan, J., et al. (2010). Secondary transfer effects of intergroup contact: Alternative accounts and underlying processes. Journal of Personality and Social Psychology, 99, 282-302.

Vanman, E., Saltz, J., Nathan, L., & Warren, J. (2004). Racial discrimination by low-prejudiced Whites: Facial movements as implicit measures of attitudes related to behavior. Psychological Science, 15, 711-714.

Vargas, P., Sekaquaptewa, D., & von Hippel, W. (2007). Armed only with paper and pencil: “Low-tech” measures of implicit bias. In B. Wittenbrink and N. Schwarz (Eds.), Implicit measures of attitudes, pp. 103-124. New York: Guilford.

von Hippel, W., Sekaquaptewa, D., & Vargas, P. (1997). The linguistic intergroup bias as an implicit indicator of prejudice. Journal of Experimental Social Psychology, 33, 490-509.

Wax, A., & Tetlock, P. (2005, December 1). We are all racists at heart. Wall Street Journal, A16.

Wittenbrink, B., & Schwarz, N., Eds. (2007). Implicit measures of attitudes. New York: Guilford.

Ziegert, J., & Hanges, P. (2005). Employment discrimination: The role of implicit attitudes, motivation, and a climate for racial bias. Journal of Applied Psychology, 90, 553-562.

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468

MICHAEL BROWN, ERIC GARNER, AND LAW LIBRARIANSHIP

Boston University School of Law Public Law & Legal Theory Paper No. 16-04

Law Library Journal Vol. 107:3 [2015-22]

Ronald Wheeler Boston University School of Law

This paper can be downloaded without charge at:

http://www.bu.edu/law/faculty-scholarship/working-paper-series/

469 Electronic copy available at: http://ssrn.com/abstract=2716114 LAW LIBRARY JOURNAL Vol. 107:3 [2015-22]

Diversity Dialogues . . .

Michael Brown, Eric Garner, and Law Librarianship*

Ronald Wheeler**

Professor Wheeler discusses the police killings of Michael Brown and Eric Garner. He posits that racialized fear is part of what fuels such violence and discusses examples of how racialized fear have impacted his personal life. Wheeler then discusses how and why law librarians can and should be prepared to discuss such events with their law library patrons.

¶1 There are times in our history when societal events cause us to step back and reflect on the severity, significance, and impact of the developments of the day. For me, the summer of 2014 was one such time. During that summer we saw the fatal police chokehold of forty-three-year-old Eric Garner in July,1 the fatal police shooting of eighteen-year-old Michael Brown in August,2 and the resulting national outcry in cities and towns across the United States.3 I found myself struggling to make sense of these events and to sort through the almost constant barrage of related media stories, commentary, and protest coverage. For those of us working with the public, with students, or with legal professionals, current events frequently come up in conversation or in the course of our duties. Thus impromptu discussions of these events with coworkers, law library patrons, students, and others grappling to comprehend these seemingly senseless occurrences were almost unavoidable. So, as a way to make sense of these events for myself and to describe their potential impact on our lives as law librarians, I penned this installment of Diversity Dialogues.

The Facts

¶2 On Thursday, July 17, 2014, forty-three-year-old Eric Garner was approached on Staten Island, N.Y., by police officers who suspected him of selling cigarettes ille-

* © Ronald Wheeler, 2015. ** Director of the Law Library and Information Resources, and Associate Professor of Legal Research, Suffolk University Law School, Boston, Massachusetts. 1. See, e.g., Deborah E. Bloom & Jareen Imam, New York Man Dies After Chokehold by Police, CNN (updated Dec. 8, 2014, 5:31 PM), http://www.cnn.com/2014/07/20/justice/ny-chokehold-death/. 2. See, e.g., David Von Drehle, The Long, Tangled Roots of the Michael Brown Shooting, TIME (Aug. 12, 2014), http://time.com/3104128/michael-brown-ferguson-cop-shooting-protests/. 3. See, e.g., Joanna Walters, Thousands March in New York over Garner and Brown Police Deaths, GUARDIAN (Aug. 23, 2014, 4:34 PM), http://www.theguardian.com/world/2014/aug/23/new -york-eric-garner-rally-michael-brown.

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gally.4 Garner, who was unarmed, pulled away when officers tried to handcuff him, and he was put into a chokehold, pulled to the ground, and held around the neck until he lost consciousness.5 Garner went into cardiac arrest as he was being placed into custody and died a short time later.6 The entire scene was caught on video where Garner “can be heard saying ‘I can’t breathe’ over and over again as officers swarm about.”7 “The medical examiner’s office determined that the chokehold, as well as compression to the chest, caused Mr. Garner’s death, and ruled it a homicide.”8 In September 2014, a grand jury “heard testimony from the officers involved and twenty-two citizen witnesses. All of the officers, with the exception of Officer [Dan- iel] Pantaleo, were granted immunity.”9 Officer Pantaleo, who administered the fatal chokehold on Garner, testified before a separate grand jury, which cleared him of any criminal charges.10 Although many of the early newspaper accounts contain no mention of race, widely circulated video footage of the incident shows that Eric Garner was black and the officers involved in his detention and killing were white.11 ¶3 Unrelatedly, on the afternoon of August 9, 2014, an unarmed, black eighteen- year-old Michael Brown and another man were approached by an officer in a patrol car12 as they were walking home from a convenience store in Ferguson, Missouri.13 As the officer began to leave his vehicle, an altercation ensued, there was a struggle, and at least one shot was fired.14 Brown allegedly ran, the officer gave chase, and at some point Brown turned to face the police officer who then opened fire.15 The officer, Darren Wilson, fired a total of twelve times, and Brown was killed.16 A grand jury met twenty-three times between August 20 and November 21, 2014, hearing testimony to decide whether to indict Wilson for his part in Brown’s death.17 Ultimately, the grand jury brought no criminal charges against Wilson, who is white.18

4. Joseph Goldstein & Nate Schweber, Man’s Death After Chokehold Raises Old Issue for the Police, N.Y. TIMES, July 18, 2014, at A1. 5. Id. 6. Staten Island Man Dies After Police Try to Arrest Him, N.Y. TIMES (July 17, 2014), http://www .nytimes.com/2014/07/18/nyregion/staten-island-man-dies-after-police-try-to-arrest-him.html?_r=0. 7. Goldstein & Schweber, supra note 4. 8. David Goodman & Michael Wilson, Officer Told Jury He Meant No Harm, N.Y. TIMES, Dec. 4, 2014, at A29. 9. David Goodman & Al Baker, New York Officer Facing No Charges in Chokehold Case, N.Y. TIMES, Dec. 4, 2014, at A1. 10. Goodman & Wilson, supra note 8. 11. “I Can’t Breathe”: Eric Garner Put in Chokehold by NYPD Officer—Video, GUARDIAN (Dec. 4, 2014, 2:46 PM), http://www.theguardian.com/us-news/video/2014/dec/04/i-cant-breathe-eric-garner -chokehold-death-video. 12. Julie Bosman & Emma G. Fitzsimmons, Grief and Protests Follow Shooting of a Teenager, N.Y. TIMES, Aug. 11, 2014, at A11. 13. The Death of Michael Brown, N.Y. TIMES, Aug. 13, 2014, at A22. 14. Bosmen & Fitzsimmons, supra note 12. 15. Dave Urbanski, The Facts Surrounding Michael Brown’s Alleged “Hands up, Don’t Shoot!” Cry Matter Little to Many, BLAZE (Nov. 27, 2014, 9:40 PM), http://www.theblaze.com/stories/2014/11/27 /the-facts-surrounding-michael-browns-alleged-hands-up-dont-shoot-cry-matter-little-to-many/. 16. Rachel Clarke & Mariano Castillo, Michael Brown Shooting: What Darren Wilson Told the Ferguson Grand Jury, CNN INT’L ED. (Nov. 26, 2014), http://edition.cnn.com/2014/11/25/justice /ferguson-grand-jury-documents/. 17. Id. 18. Monica Davey & Julie Bosman, Grand Jury Declines to Indict Police Officer in Ferguson Killing, N.Y. TIMES, Nov. 25, 2014, at A1.

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My Social Reality

¶4 These two incidents and the protests that they generated caused me to ask myself, “What is really going on here?” Let’s think about this. Armed police officers are empowered to use force in the course of their regular duties, and sometimes suspects and others are injured or killed as these officers attempt to keep the peace. I doubt that anyone would dispute this characterization. However, the simultaneous reality is that “young black males . . . are . . . at a far greater risk of being shot dead by police than their white counterparts—21 times greater, according to a ProPublica analysis of federally collected data on fatal police shootings.”19 “The 1,217 deadly police shootings from 2010 to 2012 captured in the federal data show that blacks, age 15 to 19, were killed at a rate of 31.17 per million, while just 1.47 per million white males in that age range died at the hands of police.”20 For those of us who are black, or who care about boys or young men who are black (or likely to be perceived as black21), this statistical reality is a very difficult one to wake up to every day. Yet, it is something we endure as part of our social reality. The news of the Garner and Brown killings merely confirmed our ever-present fears. This is why the protests in response to the Garner and Brown killings and the related grand jury verdicts came as no surprise to me.22 They made complete sense. They made me feel sane and understood and vindicated and finally, finally heard. ¶5 My ten-year-old multiracial godson is unusually tall for his age. I am shocked that he is so young and yet just a couple of inches shorter than me—even though his Garifuna-Honduran father and Trinidadian-American mother could both be described as tall. To the average person, my godson could appear, even at ten, to be a tall, teenaged, black youth. I think about this all of the time, and I am terrified.23 He has no idea how his size and his immaturity may combine to produce what police officers or others might interpret as inappropriate responses to direct orders. If spoken to harshly by police, he might run or talk back rather than stop and remain silent. I worry that he might appear threatening or menacing when responding with childish or childlike anger or frustration in a confrontation with police or others. I anguish over the likelihood of his pulling away or lashing out if grabbed or cornered by police. I agonize over the very real possibility that his actions could be misinterpreted as aggressive or combative and that he could be harmed as a result. So the frustration, anger, and dismay voiced by protesters around the country over the killings of Eric Garner and Michael Brown, who were

19. Ryan Gabrielson et al., Deadly Force, in Black and White, PROPUBLICA (Oct. 10, 2014, 10:07 AM), http://www.propublica.org/article/deadly-force-in-black-and-white. 20. Id. 21. Those of us with biracial or multiracial families and friends understand that it is the appearance and not the reality of race that determines how one is treated by society and by the police. 22. Walters, supra note 3. 23. Black men in the United States live with a universal fear and commonly held understanding of the danger implicit in and the possibility of police interactions because of the likelihood of mis- identification, unjust or unlawful stops, police harassment, or even violence. See, e.g., Charles M. Blow, Library Visit, Then Held at Gunpoint, N.Y. TIMES, Jan. 26, 2015, at A21 (N.Y. Times columnist’s account of his son, a Yale student, being stopped at gunpoint by the Yale police).

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both unarmed, gave voice to grievances of my own that until now had remained unspoken.24

The Fear Behind the Reality

¶6 It is an oversimplification at best to say that black youth being disproportionately killed by police officers is merely the result of racially motivated hate. It is just too easy to say that white police officers hate black people (and other people of color), so here we are with our current social reality. I simply don’t buy it. I think the problem is far more complex than that. What it comes down to, in my mind, is fear—fear and the irrational things that fear can drive people to do or not do.25 ¶7 Quite recently, I was attending a conference in Washington, D.C. I had made my way out to the American University Washington College of Law for a meeting, and I wanted to get a taxi back to my hotel.26 I asked the extremely accommodating reception personnel at the law school to call me one, and I stood out on the sidewalk waiting. I soon noticed a taxi approaching. I moved closer to the curb, and stuck my hand out to indicate that I was, in fact, seeking a taxi. I then watched the taxi slow down while the driver leaned over to examine me visually. The driver then picked up speed and drove past me without stopping. Well, I thought, that must not have been my taxi. So, after waiting another twenty minutes, I asked the reception folks to call a taxi for me a second time. Unbelievably, the exact same scenario played out a second time. Shockingly, it then happened a third time all within an hour. Three taxis, three drive-bys, and not one stop. After waiting for an hour, I angrily downloaded the Uber app27 on my phone, entered my credit card information, and got myself a ride in minutes. My point here is that it did not matter at all that I am perhaps the least scary cab fare on the planet; what mattered was that taxi drivers are sometimes afraid to pick up black men. The fear evinced here is irrational and misplaced, but it is nonetheless real, and it impacts my life in real and thankfully non-life-threatening ways. Moreover, this very same racialized fear can cause much more serious harms than the mere inconveniences that I suffered that day. ¶8 Years ago—I must have been in college then—I found myself walking down a fairly deserted city street just after dark. I am a relatively fast walker, and I often find myself overtaking and passing pedestrians incapable of keeping pace with me. That night, I noticed that I was walking up behind a young white woman. Imme-

24. Part of the public response to these incidents included young people and parents talking about and using the phrase “Hands up, don’t shoot” as both a political critique and sign of defiance and protest, as well as providing last resort guidance for young black people when dealing with police. See, e.g., Landon Jones, How “Hands Up, Don’t Shoot” Could Start a Real Revolution, TIME (Dec. 4, 2014), http://time.com/3618295/eric-garner-ferguson-hands-up-dont-shoot/. 25. I don’t suggest here that fear is the only factor. Nor do I mean to minimize the existence of systemic racism, which I believe to be a major factor. What I suggest is that our racialized social and political histories combine to infuse our everyday interactions with elements of fear that are exacer- bated by race. 26. For a map of the exact location of the Washington College of Law, see https://goo.gl/maps /jkTQe. 27. UBER, https://www.uber.com/ (last visited Aug. 24, 2015), is an electronic application that connects drivers to riders and thus bypasses traditional taxi services.

473 Vol. 107:3 [2015-22] MICHAEL BROWN, ERIC GARNER, AND LAW LIBRARIANSHIP 471 diately the thought occurred to me that this scenario could play out badly. She will undoubtedly be frightened by the swift approach of a young black man behind her. Might she scream? Run? Pull a weapon? How will I be impacted? If she screams, might someone come to the rescue? How should I then respond? At best it will be an embarrassing scene. At worst it could be deadly. All of these thoughts converged in my mind, and I felt obliged to act to prevent what I felt was the inevitable result of fear. So I slowed my pace and crossed the street taking pains to tread loudly to signal my presence. I noticed her turn and take note of my presence and my movement away from her. Her expression was one of concern but not panic. I felt relieved and also irritated. This circumstance was neither my fault nor hers. We were both pawns in a game whose rules were not of our making. Scenarios like this one have happened to me many times throughout the years. I continue to feel help- less and trapped in an unfortunate reality dictated by fear. ¶9 It is far too easy to dismiss these anecdotes as isolated incidents or to chalk them up as misinterpretations on my part. But they no doubt ring true and are familiar to black men reading this piece. Stereotypes about race underlie the fear that fuels these occurrences. “There exists [in our society] a stereotypical, yet robust, understanding of blackness as ‘badness.’”28 “The social distance between blacks and whites in America fosters the possibility of misunderstanding and mis- translation of communications and behavior.”29 This social distance, this mistrans- lation, the stereotypes and the fear converge, and the result is that I become one to be feared by taxi drivers and women alone on the streets.

Fear, Blackness, and Mental Illness

¶10 One of the things that came to mind for me immediately after reading about Eric Garner and the circumstances surrounding his death was the likelihood that mental illness may have been a factor. This man was forty-three years old, formerly employed, and selling single cigarettes on the streets.30 “He had been arrested more than thirty times, often accused of selling loose cigarettes bought outside the state.”31 The idea that a forty-three-year-old man continued to commit misdemeanors over and over seemed telling to me. Others have pointed out that repeatedly committing nonviolent misdemeanors like peeing in public, littering, panhandling, and selling single cigarettes is often associated with “immaturity, low social status, mental illness, low intelligence” and other problems.32 However, as is all too often the case, race and fear combine to turn what may have been an unthreatening

28. Camille A. Nelson, Racializing Disability, Disabling Race: Policing Race and Mental Status, 15 BERKELEY J. CRIM. L. 1, 19 (2010). 29. Id. 30. Goldstein & Schweber, supra note 4. 31. Id. 32. Pasquale55, Comment to Joe Coscarelli, Asthmatic Man Dies After NYPD Puts Him in a Chokehold; Horrifying Video Shows Him Telling Cops “I Can’t Breathe” at Least 9 Times, N.Y. MAG. (July 18, 2014, 10:39 AM), http://nymag.com/daily/intelligencer/2014/07/horrifying-video-man-dies-after -nypd-chokehold.html.

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mentally ill black man into a dangerous threat to public safety.33 Part of what we do know is that “people of color who are mentally ill, or whose mental situation is unstable, are at greater risk of being subjected to police brutality.”34 Rightly or wrongly, “the convergence of criminality and mental impairment often leads to stereotyping of the mentally ill as violent.”35 Add to that the potential influences of racialized fear, and the probability of violent police responses to mentally ill suspects of color escalates.

Race and Law Librarianship

¶11 So where do all of these events and all of these phenomena leave us as we navigate our daily lives as law librarians? How is any of this relevant to those who may feel somewhat unaffected by the race-related occurrences described above? ¶12 Simply put, “race affects our day-to-day work as law librarians . . . , [and] . . . this includes those of us who are white.”36 In her piece Race and the Reference Librarian, Mary Whisner correctly points out that race and racial issues permeate almost every aspect of the law, both criminal and civil.37 Yet racial issues are not always clear. Even though issues of race may be present and even salient, they may also remain unmentioned in legal opinions.38 Uncovering these racial issues may require extralegal research, statistical analysis, social science inquiry, and more.39 As Whisner so aptly puts it, “not all of our work is simply reacting to someone else’s questions, and we can incorporate race ourselves.”40 When we know that race impacts a particular patron’s query, we can suggest they investigate the racial issues. We can be ready with sources or we can suggest examples. We can choose not to ignore what we know to be part of our social reality. We can demonstrate through our professional interactions with patrons what legal scholars have proven to be true, that racial issues are interesting and important.41 ¶13 Showing an interest in racial justice and issues of race helps to break down barriers, expose as false perceived misunderstandings, and shed light on commonly held perceptions of a race-infused reality. As Whisner quite astutely points out, it helps law students of color (and patrons of color more generally) feel more wel-

33. See generally Nelson, supra note 28 (analyzing how the police and the criminal justice system are ill equipped to deal with the intersection of race and mental illness). 34. Id. at 7; see also NAT’L INST. OF JUSTICE & BUREAU OF JUSTICE STATISTICS, USE OF FORCE BY POLICE: OVERVIEW OF NATIONAL AND LOCAL DATA, at viii (1999), available at https://www.ncjrs.gov/pdf files1/nij/176330-1.pdf (finding that “use of force is more likely to occur when police are dealing with persons under the influence of alcohol or drugs or with mentally ill individuals.”). 35. Nelson, supra note 28, at 19. 36. Mary Whisner, Race and the Reference Librarian, 106 LAW LIBR. J. 625, 625, 2014 LAW LIBR. J. 34, ¶ 1. 37. Id. at 626, ¶ 2. 38. Id. at 629–30, ¶ 5 (providing examples of rulings where race remained unmentioned but was nonetheless profoundly important or determinative). 39. Id. at 630, ¶ 5. 40. Id. 41. See, e.g., Margalynne J. Armstrong & Stephanie M. Wildman, Teaching Race/Teaching White- ness: Transforming Colorblindness to Color Inisght, 86 N.C. L. REV. 635, 668–70 (2007–2008).

475 Vol. 107:3 [2015-22] MICHAEL BROWN, ERIC GARNER, AND LAW LIBRARIANSHIP 473 come.42 I would add to that, it helps people of color feel more understood, and it unmasks the truth that even those of us who are white can have a common understanding of how race impacts us all daily. It may even help to erode the fear that lies beneath our racialized reality. ¶14 On August 3, 2015, I happened to very briefly glance at Facebook while at work (something I almost never do), and I saw the following editorial cartoon43 on a longtime friend’s page.44

¶15 She’d commented, “I’m still thinking about this. You?”45 This friend happens not to be a person of color. She is, however, incredibly smart, indescribably funny, and devoted to issues of social justice.46 Days later, I am only now realizing the impact this illustration had on me.47 It caused me to smile, and then it caused me to question its humor. I wondered what must be wrong with me that I find humor in this dark cartoon. Yet I kept thinking about it. Then I found myself going back to Facebook, after work of course, to read the comments posted by other

42. Whisner, supra note 36, at 631, ¶ 7. 43. Bruce Plante, TULSA WORLD (Aug. 1, 2015, 12:00 AM), http://www.tulsaworld.com/ (go to http://www.tulsaworld.com/opinion/bruceplante/, then scroll to the date). Courtesy of Bruce Plante/ Tulsa World. 44. Lynn Perls, FACEBOOK (Aug. 3, 2015, 5:57 P.M.), https://www.facebook.com/lynn.perls?fref=ts (on file with author). 45. Id. 46. See Law Office of Lynn Perls, http://www.perlslaw.com/about.html (last visited Aug. 24, 2015) (describing Lynn Perls’s family law practice, which has done cutting-edge work for nontraditional families for more than twenty years but which only hints at her lifelong devotion to and ongoing work for issues of social justice). 47. In fact, I was so affected by this illustration that I felt compelled to contact the editor of this journal and add it to this essay long after the editorial deadline had passed.

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friends. I even searched the Tulsa World website to read the more than fifty comments posted there.48 What I discovered is that this process was healing for me. It gave me an outlet for my anger and helplessness and discontent. It showed me that, indeed, others were still thinking about this. The comments taught me that opinions differ about these issues and that respectful, sometimes collegial, and earnest discussion is extremely useful. More than anything, however, this illustration taught me that humor, irony, and art are powerful and important tools for a society grappling with difficult social and political problems. So I will now add irony and humor to the law librarian’s toolkit for engaging on difficult societal issues like the intersection of race and police violence. ¶16 What I have found most important, for myself and for the students, faculty, and others whom I serve is to remain willing to engage with them about the difficult developments of the day.49 As I struggled to make sense of the events of the summer of 2014, I very often felt ill equipped to engage with patrons. I wanted to retreat from discussions of Garner, Brown, and their aftermath. I resented attempts to draw me out on these subjects. Yet I ultimately found that maintaining a willingness to grapple with these topics, especially in conversations with students, was useful and healing and restorative and educational. It signaled to students my willingness to go the extra mile, to struggle along with them to make sense of difficult and emotional issues. It exposed to them my humanity, my vulnerability, and my empathy. It made us all closer and more engaged with one another, even when we disagree.

Conclusion

¶17 Most legal information professionals are tasked, at least in part, with keeping up with legal, business, and sociopolitical current events. That work informs our work with patrons attempting to solve legal problems, students learning to solve legal problems, patrons analyzing the law, or those applying the law to contemporary legal issues. Thus when current events involving the law, the criminal justice system, law enforcement, and race relations ignite in the way that the Garner and Brown events did, they can have a profound impact on our professional lives. I found this to be true in my own professional life. In particular, my commitment to contributing a regular piece to Law Library Journal on issues of diversity seemed to require me to comment on these issues. So I offer these musings as part of our profession’s ongoing dialogue on diversity. In part, my goal here is to publicly grapple with my own emotions around these events. But, perhaps more important, I hope to illustrate to my professional colleagues that your patrons, your coworkers, and your professional peers may also be struggling to make sense of these events.

48. Plante, supra note 43. 49. It is important to acknowledge that these issues are more far-reaching than Michael Brown, Eric Garner, and the summer of 2014. One estimate found that in the year following Michael Brown’s death, 314 black Americans were killed by police. See Elizabeth Kiefer, 314 Black Americans Have Been Killed by Police Since Michael Brown’s Shooting, REFINERY29 (Aug. 7, 2015, 6:00 PM), http:// www.refinery29.com/2015/08/92023/ferguson-anniversary-black-people-killed-by-police-officers# .kt7l4c:HmkM.

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Living in a diverse society demands that we all do exactly that, continue to struggle with events like these. We may not all agree on causes or solutions, but it is the willingness to struggle as a profession and as a society that ensures our collective humanity.

478

SOFT SKILLS THE IMPORTANCE OF CULTIVATING EMOTIONAL INTELLIGENCE

Boston University School of Law Public Law & Legal Theory Paper No. 16-06

AALL Spectrum, January/February 2016

January 20, 2016

Ronald E. Wheeler Boston University School of Law

This paper can be downloaded without charge at:

http://www.bu.edu/law/faculty-scholarship/working-paper-series/

479 Electronic copy available at: http://ssrn.com/abstract=2719155 SOFT SKILLS THE IMPORTANCE OF CULTIVATING EMOTIONAL INTELLIGENCE

have always really enjoyed human interaction. All of my life, I have Can “people skills” known that my greatest joys and my most crushing disappointments be taught? How came from my personal and professional human relationships. This reality is one that I have always embraced. For me, it means that I emotional intelligence am one of those “people who need people” that Barbra Streisand can help pave your sings about. These characteristics feel innate to me. I think of myself Ias a super-extrovert, and the fact that I grew up in a household full of way to success. super-introverts seems to underscore the immutability of extroversion. I feel lucky to have somehow inherited these innate people skills. However, BY RONALD E. WHEELER the more I study and break down what we think of as “people skills” or “soft skills” into discrete parts, I discover that, although perhaps partly innate, these soft skills can be developed and improved with work, reflection, and practice.

28 AALL SPECTRUM | WWW.AALLNET.ORG 480 I read somewhere that organizations hire people for their hard skills, but they end up firing people for their lack I ﬁrmly believe the more we are in touch with our emotions ... of soft skills. As a law library person- the more we sense these emotions in others … and the more we nel manager, this statement resonates can appropriately express our emotions … the better we are with me. So, what are these hard and as employees. soft skills? Hard skills are technical abilities, factual knowledge, specialized talents, and education. These are the things people learn in school or in we are as employees. Psychologist better equipped to correctly interpret technical job training. They are also Daniel Goleman, author of Emotional (and avoid misinterpreting) your sur- aptitudes developed through work Intelligence, breaks down emotional roundings and your coworkers. It helps experience, study, or practice. Legal intelligence skills into five basic parts: you avoid the petty misunderstandings research skill is a good example of a self-awareness, self-management, based on misperceptions that plague hard skill. Soft skills are the skills that self-motivation, empathy, and social many workplaces. Self-awareness allows allow you to use your technical abilities skills. Assessing yourself in each of you to form appropriate and helpful and knowledge effectively in the work- these areas requires honesty and verbal and non-verbal responses to place. They include personal, social, forgiveness as the journey is both hum- people or situations. communication, and self-management bling and enlightening. Below I share Acquiring a level of self-awareness behaviors. Attempts to define soft skills some frank self-assessments that led about my own insecurities and biases are all over the web, and they can vary me to my breakthrough moments. has helped me to become a better widely. However, most would agree employee, a better manager, and a better that soft skills include self-awareness, Self-Awareness person. Embarrassingly, because of my conscientiousness, adaptability, critical Self-awareness is one of the most own personal history, I have discovered thinking, attitude, initiative, empathy, important and fundamental compo- that I often have a visceral negative self-control, organizational awareness, nents of emotional intelligence. Being reaction to large, tall, white men. This leadership, time management, political self-aware means knowing what you are negative reaction is even more intense if savvy, likability, and persuasive ability. feeling and why, it means knowing what these men are older and somewhat bois- To sum it all up, a person who has a you are good at and what you are not terous. This reaction can cause me to mastery of soft skills can be defined as good at, it means knowing what others form negative opinions, act less friendly, being emotionally intelligent. think about you, and it means really not engage in conversation, and ulti- The best definition of emotional knowing who you are. Self-awareness mately impede productive relationships. intelligence that I have found is from is essential because when you know As I began thinking more about these Jack G. Montgomery of Western yourself and your feelings, you are interactions, I developed the capacity Kentucky University. He says that to recognize when I am having these emotional intelligence is the ability to negative feelings and to examine them sense, understand, and effectively apply in real time. the power and acumen of emotions as I recall vividly the first time I a source of human energy, informa- AALL2go EXTRA Watch Jack paused during an interaction with a G. Montgomery’s “Soft Skills: tion, and influence. Professional Indicators of Success” tall, white man to examine my negative I love this definition because it webinar at bit.ly/AALL2go0115. feelings. I recall thinking to myself: acknowledges the very important, (1) this guy is being perfectly nice appropriate, and positive role that READ Dr. Marcia Reynolds’s blog post “10 Signs You Are Not Using and friendly to me, (2) these negative emotions can play. All of my life I have Your Emotional Intelligence” at feelings have no rational basis, (3) this been called emotional, hypersensitive, bit.ly/10SignsNoEQ and don’t miss must be my own unconscious bias at or tenderhearted in ways that implied her article “Grow Where You Are” work, and (4) I will not be ruled by weakness or negativity. I firmly believe on page 32. bias. I was able to take charge of my the more we are in touch with our LEARN MORE Read Huron Consulting’s actions and not let them be dictated emotions, the more we understand white paper, “Emotional Intelligence: by negative feelings that have no their origins, the more we sense these What Can Learned Lawyers basis in my conscious reality. I was emotions in others, and the more we Learn from the Less Learned?” at able to interact in more friendly and bit.ly/JF16HuronEQ. can appropriately express our emotions appropriate ways with a whole set of

Images © iStock.com./Leolintang/RawPixel Ltd./Angel1978. © iStock.com./Leolintang/RawPixel Images (even in the workplace), the better perfectly wonderful people with whom

481 JANUARY/FEBRUARY 2016 | AALL SPECTRUM 29 interactions had initially been difficult. Moreover, I was able to make my professional circle more expansive, rich and diverse. In this way, being self- aware has helped me to understand my own internal and external likes, dislikes, insecurities, hypersensitivities, and vulnerabilities. It has also helped me to recognize that almost everyone has these kinds of vulnerabilities to overcome and that they can be conquered. So how does one become more self-aware? One strategy is to use “I would disagree. Some managers feel means of self-management, I began think” statements in your own internal that emotions should not be expressed an internal conversation with myself, dialogue. This will allow you to notice at all in the workplace, and I strongly which sounded something like this: patterns or scripts that recur. These disagree with this assertion. “OK, I am getting really angry and patterns will help you to understand I know that I struggle with anger. upset, and these emotions are scaring your own emotions and how they can I struggle with how to feel it, how to me. I need to calm down! I need to be situationally triggered. It also allows process it, and how to express it. I communicate to her that the things you to ask yourself, “Is this really what I never really know when, how, and to she is saying are upsetting and are think?” So, for me, in my big, white guy whom I should let it out. I often don’t unproductive. I need to be calm but example, I began having the following even recognize the feeling of anger emotionally honest.” This internal con- internal conversation with myself: until very late in a situation when I say versation allowed me to acknowledge to myself, “Oh, wait? This is anger I’m my emotions, give myself instructions I think he has no respect for me. feeling. I get it!” on my behavior, and plan my response. I think he assumes I’m stupid. Having grown up in a household So, I said to her, “The things you’ve with three super-introverts, there was just said are quite upsetting to me.” My I think he wishes he didn’t have to never any arguing, yelling, or demon- voice shook as I spoke those words, interact with me. stration of how to best communicate and I paused to take a calming breath After having this same internal con- anger. So, I think I failed to learn how and to look her in the eyes. I could see versation several times, I had to realize and when to express it. The result is her begin to recognize that she had that I had no reality-based reason to that I struggle with anger as a man- made me angry. I then asked, “Why think any of those things and that ager. My default or go-to responses to did you say those things to me? What these white men were perfectly nice, anger in my personal life are to raise purpose did you want to achieve in kind, and professional. I had to admit my voice or to burst into tears, and this meeting? How were you hoping I to myself that I was the source of the neither of these is usually appropriate would respond? Why, exactly, are you problem and that I had to work on my in the workplace. However, working on here in my office?” own internal issues in order to func- self-awareness and self-management Posing these questions served many tion appropriately in the workplace has made me better equipped to rec- purposes. First, they were sincere and elsewhere. ognize anger in myself, to analyze its questions that I had. I was trying to origins, assess its validity, and fashion understand this interaction. Next, they Self-Management appropriate ways to acknowledge and caused her to think and to examine her Self-management is defined as the express it honestly. own motives and intentions. I believe awareness and management of how Years ago, I was having a difficult they caused her to realize that her one tends to encounter the world. It conversation with an employee of behavior was counterproductive and entails controlling how you internally mine in my office. This employee was not going to achieve any of her and externally respond to people or sit- began saying things to me about my desired goals. After a pause, she got up uations both verbally and nonverbally. behavior as a manager that seemed and left my office. Good self-management is not possible to me to be accusatory. Some of her When I think about this incident, without self-awareness, and it allows comments began sounding like veiled it teaches me that being emotionally you to be emotionally honest with threats. These comments certainly honest, by communicating that I was yourself, with your coworkers, and evinced a lack of respect, and they becoming upset, was powerful. Also, others. I feel that emotional honesty is felt intentionally hurtful. I wanted asking her about her motives, instead of extremely important in the workplace, to yell, “What the (EXPLETIVE) are inferring malice, was important to try to but I acknowledge that some people you talking about?” But instead, as a get to the heart of the matter. I believe

30 AALL SPECTRUM | WWW.AALLNET.ORG 482 her hasty exit was the result of her real- the eyes of others and to anticipate skills, have the something extra that izing that the situation had gone awry. the wants and needs of others in the makes them not only insightful and Self-management, informed by workplace. It allows you to be a more productive but popular and sought self-awareness, gave me the tools to compassionate and kinder human after as colleagues or teammates. take charge of this difficult situation. being. Moreover, it helps you to avoid Other psychologists, like Rachel misunderstanding others’ intentions. Brushfield in 2012, have identified Self-Motivation Professor Nancy E. Snow writes in several behavioral indicators that can be Jack Montgomery defines self- her American Philosophical Quarterly used to measure and observe emotional motivation as expending energy in a article titled “Empathy” that “empathic intelligence. These indicators include specific direction for a specific pur- identification is not always fully self-confidence, a self-deprecating sense pose. It requires you to realize what conscious or deliberate. Empathy is of humor, trustworthiness, openness tasks require extra energy and why that produced through a variety of psy- to change, a strong drive to achieve, is. You should also be able to identify cho-physical mechanisms, some of optimism, cross-cultural sensitivity, what the costs are of expending this which operate at fairly deep levels of effectiveness in leading change, persua- energy and on whom these costs will consciousness.” Empathy serves as siveness, empathy, remaining unflus- be imposed. Additionally, if you are not a sort of emotional compass for our tered when challenged, and awareness able to self-motivate, you should recog- actions. Snow posits that an empa- of one’s own emotional state. Indeed, nize why not, what are the costs to you thizer is guided to consciously look taken as a whole, these qualities that personally, what are the costs to others, for signs of other peoples’ emotional measure emotional intelligence have and what (if any) are the remedies? states, to reflect on the appropriateness been seen as predictors of success. In my own professional life, I proof his or her response, and to deliberate crastinate until the last minute on most on what kind of action is appropriate Conclusion projects. I realize shortly before proj- in the circumstances. Although technical knowledge, educa- ects are due that I must now self-moti- However, too much empathy can tion, and other achievement indicators vate and expend a ton of extra energy, be counterproductive because it can or hard skills may get you the job, work longer hours, forego happy hour, allow other people to manipulate you. often it is the soft skills that enable you and endure unnecessary stress to For example, empathy has become to advance, get promoted, and have a get the project done on time. I know counterproductive when a supervisor successful career. As one young lawyer what it requires, and I know why. The decides not to draft a disciplinary put it in a recent Huron Consulting cost to me is stress and aggravation. memo about an underperforming white paper, “I wasn’t the smartest stu- However, if I were not able to self-mo- employee because doing so would dent in law school … but I have always tivate, I would have to ask why not? I hurt that employee’s feelings. Empathy understood what makes people tick might have to ponder things like: (1) has also become a problem when and always known my own strengths I hate my job, (2) I don’t care about rather than tell a co-worker that she and weaknesses. I’m not afraid to ask this project, or (3) I really want to be is not carrying her weight, you decide questions and not afraid to look dumb. a personal shopper. The cost to me instead to do some of her work your- Too many brighter lawyers don’t know might be bad self-esteem, disappoint- self to avoid upsetting her. These are how to get on with people.” Knowing ing my peers, and poor evaluations. examples of too much empathy. what these skills and traits are allows The cost to others might be lost profits, one to focus on them and develop low team morale, or that co-workers Social Skills greater emotional intelligence. These no longer want to work with me. The The final component of emotional are the skills that could pave the way remedy could be changing jobs, seeing intelligence is social skills. Social skills for your ultimate success. a therapist, getting medication, exercis- are a catch-all category that combines ing more, or planning and scheduling effective communication, situationally work projects more in advance. appropriate assertiveness, listening ability, the ability to take and receive Empathy constructive criticism, the ability to Simply put, empathy is the ability to work successfully in a team situation, understand and share the feelings of and being emotionally honest and RONALD E. WHEELER others. People lacking empathy are expressing emotions appropriately. DIRECTOR OF THE FINEMAN AND PAPPAS LAW LIBRARIES Socially skilled individuals are able to WHEELER E. RONALD BY © 2016 often called self-centered, narcissistic, Associate Professor of or even sociopathic. Empathy helps combine all of the above-mentioned Law and Legal Research you to be a good team player because facets of emotional intelligence in Boston University School of Law ways that enable them to be excellent Boston, MA it allows you to better understand the [email protected] effects that your actions have on oth- employees. These are the employees ers. It helps you to see things through who, in addition to possessing hard

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484

Legal Studies Research Paper Series Research Paper 15-36 September 29, 2015

We All Do It: Unconscious Behavior, Bias, and Diversity

Ronald Wheeler Director of the Law Library & Information Resources & Associate Professor of Legal Research, Suffolk University Law School

This paper can be downloaded without charge from the Social Science Research Network: http://ssrn.com/abstract=2667132

485 Electronic copy available at: http://ssrn.com/abstract=2667132 LAW LIBRARY JOURNAL Vol. 107:2 [2015-15]

Diversity Dialogues . . .

We All Do It: Unconscious Behavior, Bias, and Diversity*

Ronald Wheeler**

Mr. Wheeler suggests that many of our behaviors, in the workplace and elsewhere, are motivated by unconscious triggers and emotions, including racial biases. These behaviors, however, can be prevented by making conscious choices that enhance diversity.

¶1 The academic literature on diversity in librarianship and in the legal professions tends to focus on institutional barriers to racial and ethnic diversity. Things like law school and library school admissions demographics, law firm employment demographics, and the demographics of legal academe have all been discussed.1 These types of discussions, while necessary, may also allow most law librarians to feel absolved of any responsibility for diversity. They reinforce the notion that the average law librarian has little control over changing the systemic forces that impede diversity. Yet there are steps that all law librarians, and indeed all people, can take to foster diversity in the workplace. My hope here is to demonstrate that we can all contribute to advancing diversity in our workplaces.

What We Know from Social Psychology

¶2 Much of what we do on a daily basis is unconscious. Psychologists and other social and behavioral scientists are in agreement about this point.2 In fact, “one of the least controversial propositions in all psychology is that people are not always

* © Ronald Wheeler, 2015. ** Director of the Law Library and Information Resources, Suffolk University Law School, Boston, Massachusetts. 1. See, e.g., Meera E. Deo, Looking Forward to Diversity in Legal Academia, 29 BERKELEY J. GEN- DER, L. & JUST. 352 (2014) (discussing the underrepresentation of women of color in legal academe); John Nussbaumer & Chris Johnson, The Door to Law School, 6 U. MASS. ROUNDTABLE SYMP. L.J. 1 (2011) (discussing the reasons minorities are shut out of law schools); Sarah E. Redfield, The Educa- tional Pipeline to Law School—Too Broken and Too Narrow to Provide Diversity, 8 PIERCE L. REV. 347 (2010) (discussing the low numbers of minorities in the legal professions); Karen Sloan, Legal Educa- tion’s Diversity Deficit: Despite Efforts, Modest Rise in Minority Enrollment, NAT’L L.J., May 12, 2014, at 1; see also Alyssa Thurston, Addressing the “Emerging Minority”: Racial and Ethnic Diversity in Law Librarianship in the Twenty-First Century, 104 LAW LIBR. J. 359, 2012 LAW LIBR. J. 27. 2. See, e.g., SIGMUND FREUD & JAMES STRACHEY, THE PSYCHOPATHOLOGY OF EVERYDAY LIFE (1965); Richard E. Nisbett & Timothy D. Wilson, Telling More Than We Can Know: Verbal Reports on Mental Processes, 84 PSYCHOL. REV. 231 (1977); Timothy D. Wilson & Nancy Brekke, Mental Contamination and Mental Correction: Unwanted Influences on Judgments and Evaluations, 116 PSYCHOL. BULL. 117 (1994).

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aware why they do the things they do.”3 That means not only that we are sometimes unaware of what we are doing, but also that we are sometimes unaware of why we are doing the things that we do. Social psychologists in particular have “investi- gated the ways in which the higher mental processes such as judgment and social behavior could be triggered and then operate in the absence of conscious intent and guidance.”4 ¶3 One category of unconscious behaviors are those that we consciously choose to do, but then the unconscious takes over so that we are able to do these tasks without conscious guidance. “Typing and driving a car (for the experienced typist and driver, respectively) are classic examples.”5 Many of us get in our cars to go to work and then before we know it, we are pulling into our work parking space with no real recollection of the drive to work. Here the unconscious was able to take over the task of driving the car to work without requiring any real conscious thought. The example I like to give from my personal life is running on a treadmill. I can climb onto the treadmill, turn on the Glee tunes on my iPhone, and then run for an hour while not ever consciously thinking about running, where I’m placing my feet, whether I’m close to falling off of the treadmill, and so on. The mechanics of running are operated by my unconscious mind. ¶4 Another category of unconscious behaviors is even more interesting. These are behaviors that we do consciously but are unaware of why we do them. Here there is a “preconscious analysis of stimuli prior to the products of the analysis being furnished to conscious awareness.”6 In other words, the unconscious analyzes information and produces the motivation for doing something, and the conscious mind does the task in question without any real awareness of where the motivation for action came from. There are lots of examples from experiments and from daily life in the psychology literature. Famous experiments involving seating and gender provide a good illustration of this phenomenon. These experiments have proven that when choosing seating in a waiting room, men will almost never sit next to or across from other men.7 Unconsciously, “males react negatively and are usually disturbed by frontal invasion [or encounter] by another male” in a waiting room situation.8 When entering a waiting room where only women are seated, men over- whelmingly prefer the frontal position and will sit across from a woman. Women, however, will almost always sit adjacent to another woman and not across from or in the frontal position.9 What is important to note is that both men and women are not aware or conscious of why they are making these seating choices. ¶5 Some unconscious triggers are emotional in nature. “Under some conditions an emotional process may remain entirely unconscious, even when the per-

3. Tom Pyszczynski, Jeff Greenberg & Sheldon Solomon, Proximal and Distal Defense: A New Perspective on Unconscious Motivation, 9 CURRENT DIRECTIONS PSYCHOL. SCI. 156, 156 (2000). 4. John A. Bargh & Ezequiel Morsella, The Unconscious Mind, 3 PERSP. PSYCHOL. SCI. 73, 74 (2008). 5. Id. 6. Id. 7. Ciani A. Camperio & M. Malaman, Where to Sit In a Waiting Room: Density, Age and Gender Effects on Proxemic Choices, 17 HUM. EVOLUTION 175, 175 (2002). 8. Id. 9. Id. at 182.

487 Vol. 107:2 [2015-15] UNCONSCIOUS BEHAVIOR, BIAS, AND DIVERSITY 327 son . . . [feeling the emotion can] . . . describe his or her feelings correctly.”10 In other words, sometimes we know what emotions we are feeling, but we are unaware of why we are feeling them. “Such an emotional process may nevertheless drive the person’s behavior and psychological reactions, even while remaining inaccessible to conscious awareness.”11 We call this emotional process unconscious or implicit emotion. These emotions, rather than occurring explicitly or with “conscious awareness of an emotion, feeling, or mood state,” occur implicitly or independent of conscious awareness, causing “changes in experience, thought, or action.”12

The Role of Bias

¶6 The fact that we are often unaware of the stimuli or motivations for the decisions that we make is further complicated by the impact of bias. “Half a century of . . . research has shown that human judgment is often biased.”13 “By some counts, 80% of Western democratic populations intend benign intergroup relations but display subtle biases.”14 It happens naturally, and it happens in all of us. “People seem to overrely on stereotypical intuitions and so-called heuristic thinking instead of more demanding, deliberative reasoning when making decisions.”15 Simply put, it is easier and more efficient for us to make on-the-spot, everyday decisions this way. ¶7 Biases come in many forms and can influence all of our interactions, including those occurring in the workplace. Much has been written about the impact of racial bias and unconscious racism.16 Therefore, for our purposes here, I will assume these are concepts with which most people are familiar. It is enough, then, to assert that unconscious racism exists, and it can be a powerful driver of behavior even in well-meaning individuals harboring no racial intent.17 The resulting effects on racial diversity can be inferred. ¶8 However, even non-race-based unconscious biases drive behavior in the workplace. Biases of all kinds create “awkward social interactions, embarrassing slips of the tongue, unchecked assumptions, stereotypic judgments, and spontaneous neglect.”18 “The mundane automaticity of bias . . . creates a subtly hostile environment for

10. Piotr Winkielman & Kent C. Berridge, Unconscious Emotion, 13 CURRENT DIRECTIONS PSY- CHOL. SCI. 120, 120 (2004). 11. Id. 12. Id. at 120–21. 13. Wim De Neys, Bias and Conflict: A Case for Logical Intuitions, 7 PERSP. PSYCHOL. SCI. 28, 28 (2012). 14. Susan T. Fiske, What We Know Now About Bias and Intergroup Conflict, the Problem of the Century, 11 CURRENT DIRECTIONS PSYCHOL. SCI. 123, 123 (2002). 15. De Neys, supra note 13, at 28. 16. See, e.g., Hart Blanton & James Jaccard, Unconscious Racism: A Concept in Pursuit of a Measure, 34 ANN. REV. SOC. 277 (2008); John F. Dovidio & Samuel L. Gaertner, Reducing Prejudice: Combating Intergroup Biases, 8 CURRENT DIRECTIONS PSYCHOL. SCI. 101 (1999); Lincoln Quillian, Does Unconscious Racism Exist?, 71 SOC. PSYCHOL. Q. 6 (2008). 17. There are, however, a few contemporary researchers who deny the existence of unconscious racial prejudice. See, e.g., Richard E. Redding, Bias on Prejudice? The Politics of Research on Racial Prejudice, 15 PSYCHOL. INQUIRY 289 (2004). 18. Fiske, supra note 14, at 124.

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out-group members.”19 Biases of all kinds can unconsciously drive behaviors such as “withholding positive emotions from out-groups . . . , withholding basic liking and respect . . . , and cool neglect.”20 Understandably, these behaviors can impede diversity by driving away out-group members or making them feel unwelcome and unappreciated.

Workplace Bias

¶9 I offer examples of my own unconscious biases and how they play out in the workplace to illuminate their effects on diversity. Unlike most librarians and contrary to the librarian stereotype, I am a super-extrovert. I enjoy interacting with people of all kinds, and I draw energy or recharge through human connections. Conversely, I am depleted or drained by most solitary tasks. I would much rather talk about a problem or issue than think about it alone. As a result, I am very naturally drawn to others who enjoy frequent spontaneous conversation, who seem charged by human interaction, and who exhibit extroverted behaviors.21 What I have noticed in my professional life is that I have a natural tendency to gravitate to the talkers or extroverts in the workplace far more often than I do to the introverts or quiet types. This has in the past created the perception that I am excluding people, that I like some people more than others, or that I value the extroverts over the introverts. This is how unconscious bias works. My intention was never to exclude anyone, and my actions were never driven by conscious choices. Even so, my actions may have caused some to feel devalued, disliked, or unwelcome. The effect could have been to drive away this facet of workplace diversity, which I greatly value. Before I began really thinking deeply about these issues, I was completely unaware of these behaviors of mine, what motivated them, and how they were impacting others in the workplace. ¶10 I can offer another example from my personal life. I have a nephew who, as the result of a motorcycle accident years ago, is paralyzed from the waist down. He is a fun-loving and social guy who navigates the world in a wheelchair. He is an easy person to like, and my perception is that people generally enjoy his company. Nev- ertheless, I have noticed that even at family gatherings, he will sometimes find himself alone and on the periphery of the assembled group. I believe this happens as a result of unconscious bias. Unconsciously and unknowingly, people gravitate toward easy social interactions. People’s unfamiliarity with interacting with someone in a wheelchair or their fear of the possibility of discussing my nephew’s paralysis or their discomfort around the mechanics of standing while interacting with someone who is seated all conspire to drive their avoidance of people like him. I’ve seen this dynamic happen again and again, and I know those involved are completely without malice and that many do, in fact, love my nephew. Neverthe-

19. Id. 20. Id. at 125. 21. I realize that extroversion and introversion are far more complex and nuanced concepts than I acknowledge here, and that I am relying here on the stereotypical definitions commonly understood by most people. See THE MYERS & BRIGGS FOUNDATION, http://www.myersbriggs.org/ (last visited May 29, 2015) (for a more thorough examination of the concepts of introversion and extroversion).

489 Vol. 107:2 [2015-15] UNCONSCIOUS BEHAVIOR, BIAS, AND DIVERSITY 329 less, the impact of these situations could cause him to feel disliked, excluded, and uncomfortable. An understandable consequence would be for him to avoid these social gatherings altogether. Now imagine, as I often do, how these dynamics might play out for my nephew in the workplace. It is not at all difficult to imagine how he might begin to feel excluded or even unwelcome. These dynamics are real, they occur in the workplace, and they impede workplace diversity. ¶11 One final anecdote I’ll offer involves the intersection of race, national origin, and language. Partly as a result of having taught and traveled in China, I have become more aware of the Chinese students studying at my law school.22 Most of my observations are of interactions outside the classroom in more social contexts like at receptions or other student events. Without fail, I have noticed the students from China ending up alone and looking uncomfortable. Admittedly there could be a host of explanations for this phenomenon including choices being made by the Chinese students themselves. Notwithstanding the Chinese students’ actions, it is the actions and omissions of the U.S. students that interest me. Invariably, I’ve seen U.S. students look at a Chinese student standing alone and then turn and walk the other way. I’ve even witnessed groups of U.S. students suddenly disperse when approached by a Chinese student. I am confident that these U.S. students harbor no ill will and that they intend no harm. I suspect that their actions are driven by unconscious biases, fears, and emotions. I suspect fear of otherness, inexperience with or fear of conversing with nonnative English speakers, or even mere lack of exposure to people born in other countries all unconsciously drive their avoidance behaviors. These types of actions, especially in the workplace context, can cause at best isolation and discomfort. Even worse, people who feel shunned in this way can begin to feel disliked, discriminated against, and unwelcome.

Self-Awareness

¶12 The first thing that we can all do is become more self-aware. It sounds too simplistic to be true, but it works. The contemporary social psychology literature confirms this assertion. “Implicit attitudes are difficult to access through introspection, but . . . with directed introspection their impact can be somewhat controlled.”23 In my own professional life, I began noticing that while closeness was developing between me and my more extroverted coworkers, a distance was developing between me and my more introverted coworkers. I was saddened by this reality for several reasons. First, I really liked and admired my less verbose colleagues. In fact, in many cases I liked them more than the extroverts with whom I had to compete for floor time during conversations. Additionally, I recognized that it was often the introverts who were more thoughtful and contemplative. They were often the ones who offered a much more nuanced and complete analysis of problems than my more knee-jerk and often grandiloquent opinions contained. I began to realize that I was,

22. I have made these observations at several different law schools at which I have been employed, and my intention is not to implicate any particular law school environment. Instead I mean to assert that these situations occur everywhere. 23. Quillan, supra note 16, at 7.

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in great part, responsible for this developing dynamic and that I could take steps to change it. ¶13 So, as I made my multiple daily rounds popping into people’s offices for chitchat, I began making a point of including the introverts in my perambulation. This took effort on my part not because the introverts were unpleasant in any way, but because conversation with them often took more effort on my part. I found that I often had to brainstorm a few topics to have at the ready in case the conversation lagged. I discovered that asking questions is a great technique for engaging those less inclined to conversational chatter. Also, I found I had to resist my natural tendency to fill silences with my own bombast. After a while, I discovered that conversation with the introverts became much easier. We both (I think?) began to enjoy each other more, and I felt that there grew a mutual appreciation for each other as colleagues. I definitely felt the distance or isolation from the introverts begin to melt away. Perhaps most important, I learned that I had to respect people’s boundaries when they were sometimes not interested in impromptu conversation. This was a really difficult lesson for me to learn. However, beginning the process of becoming more self-aware and changing some of my behaviors that were driven by unconscious choices were feasible. It merely required me to do some real self- reflection and to be more deliberate in my daily interactions that involved unconscious choices.