Bostonbarjournalnovember/December 00 a Publication of the Boston Bar Association

BostonBarJournalNovember/December 00 A Publication of the Boston Bar Association

AA Low-DoseLow-Dose Prescription:Prescription: CriminalCriminal ProsecutionProsecution ofof O O -Label-Label DrugDrug PromotionPromotion

Single-Member Limited Liability Company Denied Charitable Exemption of Property

Criminal Practice in Suffolk Superior Court

Search and Seizure of Computers: Commonwealth v. McDermott

No Judicial Remedy Left Behind: Fulﬁ lling the Commonwealth’s Duty to Educate Its Children After McDuffy and Hancock

Making and Amending the Massachusetts Rules of Civil and Appellate Procedure

Joint Defense Agreements Green Point Legal Services Legal Outsourcing R edef ined American attorneys working for American attorneys.TM

Outsourcing conjures up great promise. ?Research Cost savings. Increased efficiency. Ability to ?Brief writing focus on core strengths and reach more ?Pleading and motion preparation clients. Tapping into new skill sets with ?Litigation support minimal risk and investment. ?Document prep and review ?Contract review Utilizing a large pool of highly qualified American attorneys residing and working in ?Lease review and abstraction Israel, where the cost of living is ?Due diligence considerably lower, Green Point is able to ?Indexing of transcriptions and provide consistent, top-quality legal talent in minutes a wide variety of specialities, at costs far ?Document summaries lower than can be obtained in the USA. ?Real estate transactional support ?Title abstracts With Green Point you can outsource with ?Inspection reporting confidence. Retain control. Maintain quality ?Escrow work standards. Establish a long-term relationship and fully amortize your transition costs. Call ?Training Green Point today and realize the promise ?”Virtual" in-house counsel of outsourcing for your firm. services

To find out more, or to qualify for our free trial offer, contact Ken Wollins, [email protected] 212-913-0500 x552 (office), 781-248-0195 (mobile) Boston Bar Journal

Volume 1, Number November/December 2007 Contents President’s Page 2 Ofﬁ cers of the Boston Bar Association President, Anthony M. Doniger BBJ Editorial Policy 3 President-Elect, Kathy B. Weinman Vice President, John J. Regan Departments Treasurer, John H. Chu Secretary, Deborah S. Birnbach Heads Up 4 Single-Member Limited Liability Company Denied Charitable Members of the Council Exemption of Property Mark M. Christopher Damon P. Hart Grace H. Lee R.J. Cinquegrana Brent L. Henry James D. Masterman By Robert E. Cowden III Lisa M. Cukier Christine Hughes Samuel B. Moskowitz Paul T. Dacier Julia Huston Rebecca B. Ransom Voice of the Judiciary 6 Laurie Flynn Sandra L. Jesse Vivian Tseng Criminal Practice in Suffolk Lawrence M. Friedman Kimberly Y. Jones Charles E. Walker, Jr. Randolph M. Gioia Robert H. Kelley Mark J. Warner Superior Court Lisa C. Goodheart Nina J. Kimball By Margaret R. Hinkle

Past Presidents Case Focus 8 Edward J. Barshak Joseph L. Kociubes John A. Perkins Search and Seizure of Computers: Joseph W. Bartlett Renée M. Landers Rudolph F. Pierce Commonwealth v. McDermott John G. Brooks Edward P. Leibensperger Joel M. Reck R.J. Cinquegrana William F. Looney, Jr. Richard W. Renehan By Jeanne Kempthorne John J. Curtin, Jr. Joan A. Lukey Lauren Stiller Rikleen Gene D. Dahmen Hon. James P. Lynch, Jr. Mary K. Ryan Legal Analysis 9 John P. Driscoll, Jr. Hon. Sandra L. Lynch Richard A. Soden No Judicial Remedy Left Behind: Thomas E. Dwyer, Jr. James J. Marcellino Raymond H. Young Hugh R. Jones, Jr. Hon. Margaret H. Marshall Fulﬁ lling the Commonwealth’s Duty Michael B. Keating Edward I. Masterman to Educate Its Children After McDuffy and Hancock Boston Bar Journal Board of Editors By Curtis B. Dooling and Bonnie Sashin, Editor Matthew C. Baltay Aaron J. K. Ostrow, Associate Editor Manisha H. Bhatt Maura M. Pelham Catherine F. Meeks, Cover Design Hon. Thomas Billings Deborah S. Birnbach The Profession 13 Lisa S. Burton The Boston Bar Journal is published ﬁ ve times a year by Making and Amending the Andrew L. Cohen the Boston Bar Association at 16 Beacon Street, Boston, Michael A. Collora Massachusetts Rules of Civil and Massachusetts 02108. Tel. (617) 742-0615. Articles Hon. William I. Cowin from the members of the Boston Bar Association are Appellate Procedure Hon. Judith Fabricant encouraged. Mail all correspondence to the Boston Bar Donald R. Frederico (Chair) By Christine P. Burak and Journal, 16 Beacon Street, Boston, MA 02108. Visit the Hon. Mark V. Green Boston Bar Association at www.bostonbar.org. Articles Marc G. Perlin Joseph Halpern appearing in the Boston Bar Journal represent the Martin R. Healy views of their authors and do not necessarily carry the Practice Tips 15 J. Allen Holland endorsement of the Association. Kimberly Y. Jones Joint Defense Agreements ©2007 Boston Bar Association. Elizabeth Eunjoo Kim All rights reserved. By Peter M. Casey Andrea Studley Knowles Paul G. Lannon, Jr. Legal Analysis 17 Advertising inquiries: Hon. Peter M. Lauriat Call (617) 778-1958. Michael K. Loucks A Low-Dose Prescription: Criminal John Loughnane Prosecution of Off-Label Drug Martha Ann Mazzone David A. McKay Promotion Mark F. Murphy By Michele L. Adelman and Timothy M. Murphy Regina S. Rockefeller Catherine N. Karuga Hon. Janet L. Sanders Vivian Tseng BBA Update 21 BBF News 26 Pro Bono Update 28

Boston Bar Journal • November/December 2007 1 President’s Page

By Anthony Doniger Déjà Vu All Over Again

hen you step into the same or that it is fully equipped to provide efficient access to justice shoes worn by eighty-five to rich and poor alike? Ask yourself why it isn’t. At least in part, W previous BBA Presidents, it is because of a failed recognition that there are few—if any— looking back at what prior incumbents votes to be gained by generously supporting the judiciary. thought and wrote about proves educational. To that end, I recently dredged up The judiciary is undoubtedly the least understood branch of the President’s Pages written by my government, and the one with virtually no constituency. It is partner Ed Barshak over thirty years ago, an easy target of vituperative and ill-informed reaction to what from 1974-76 (presidents served two-year appear to be shocking orders, soft sentences, and unwar- terms then). The exercise was a useful ranted judicial activism. Witness the reaction to Judge one, insofar as it is a common human Garrity’s busing decrees, the treatment of now Supreme tendency to feel that the issues and problems we grapple with Judicial Court Justice Margot Botsford at her recent confirma- are new or different (otherwise, surely, they would have been tion hearing by certain Governors’ counselors, and the rap on solved previously); it is humbling to be reminded that in fact, the SJC’s recognition of same-sex marriage. Legislators and they are not. Mindful that history does indeed repeat itself, we governors perceive that they will neither gain votes by should not be surprised that we are today dealing with old increasing the judicial budget, nor lose popularity by vetoing problems, to which the need to respond remains vital. judicial appropriations. This threatens the ability of our courts to function efficiently and to continue instituting and advanc- In 1974, United States District Court Judge W. Arthur ing the reforms undertaken by the SJC and the office of the Garrity issued his now-famous busing decrees in the Boston School Desegregation case. These directly affected many Chief Justice for Administration and Management, especially Boston residents and in many quarters were met with violence in the wake of the 2003 Monan Committee Report. A gover- and outrage. The Boston Bar Association responded in a nor—a long-time practicing lawyer all too familiar with the number of ways, two most notable: first, it awarded Judge need to improve the efficiency of and access to the justice Garrity its Public Service Award. Said President Barshak in system—in his first budget, recently chose to single out the his October 1974 President’s Page: “the public reaction to his appropriation to the judiciary for his only substantial veto. judicial decrees sucked the Judge into a political maelstrom. This says a great deal about the calculation of whether there He was vilified as if he were a ward healer who had sold out to would be a substantial risk of a constituency revolt in the face some alien enemy. His judicial act was distorted as a raw of such cuts. While it is heartening that the judicial budget political thrust. Public understanding of the rule of law and of wound was healed by the Legislature this year, it is troubling the rule of the courts was damaged and endangered…Besides to think that the guts of the ongoing court reform efforts recognizing the Judge for his many years of judicial effort, the begun a few years ago would have been torn out without this award was a symbolic reminder that his decrees in the Boston turnabout. school desegregation case embodied the rule of law.” The BBA also issued a widely disseminated pamphlet about the I am sorry to be tooting the same horn my partner blew desegregation orders, to explain the complexities of enforcing thirty years ago, but we’re reading from the same sheet of constitutional rights and to enhance the public’s understand- music. We lawyers must do more to remind the public that the ing of the orders and the role of the Court. court system is a crucial part of the fabric of our society, central to the smooth and efficient functioning of our economy In another President’s Page (November, 1974) President and vital to the protection of rights and liberties. There are Barshak took on the condition of the courts. Among other effective strike forces of attorneys ready to respond publicly to observations, he wrote: “The delivery of justice to litigants is unfounded criticism of individual judges by the press or the sometimes a strange thing. The client tries a case to a judge public. This is important, but it is only part of the solution. All who is sorely pressed to handle his work load without the of us, collectively and individually, need to make an effort to secretaries, dictating equipment and other amenities com- increase the public’s understanding of our judicial system’s monly found in laws offices.” Sound familiar? The perspective importance and of the judiciary’s independence. In this way, that the Commonwealth’s judges are too few in number, our political leaders will perceive that there is a constituency— understaffed, under-equipped, and over worked has changed both in the business community and the community at large— little since those days. Who among us would seriously argue that must be heeded when funding issues for the courts are that our court system today is adequately funded and staffed, considered.

Boston Bar Journal • November/December 2007 Board of Editors

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

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

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

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

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

Boston Bar Journal • November/December 2007 Heads Up

By Robert E. Cowden III

Single-Member Limited Liability Company Denied Charitable Exemption for Property

n March of this year, the Massachusetts exempt parent, disregarded status brings exemp- Appellate Tax Board (“ATB”) held that as tion for the SMLLC’s activities without the Imatter of law, property owned by a single- burdens of seeking and maintaining tax-exempt member limited liability company (“SMLLC”) status for a separate entity. However, use of an having a charitable corporation as its member did SMLLC may have disadvantages under state not qualify for property-tax exemption because statutes providing special benefits to charitable the company was not “incorporated” as required organizations. by G.L. c. 59, §5, Third. CFM Buckley/North, LLC Robert E. Cowden III is a partner v. Board of Assessors of the Town of Greenfield (and The ATB Decision in Casner & two related appeals), 2007 Mass. Tax LEXIS 16. If Clause Third of G.L. c. 59, §5 provides for Edwards, LLP. A upheld by the Appeals Court, the ATB’s interpre- property-tax exemption only in the case of former Co-Chair of the Committee tation of Clause Third will effectively deprive charitable organizations. A “charitable organiza- on Tax-Exempt charitable corporations of a useful vehicle for tion” is a “(1) literary, benevolent, charitable or Organizations, he holding title to property. scientific institution or temperance society concentrates his practice on the incorporated in the Commonwealth, and (2)… affairs of nonprofit Background [certain trusts]…” (emphasis added). (The organizations. The advent of Massachusetts limited liability requirement of a Massachusetts corporate companies (“LLC”) in 1995 was bound to raise domicile was declared unconstitutional in Mary C. questions as to how they would be treated under Wheeler School, Inc. v. Assessors of Seekonk, 368 existing law inhabited by corporations, trusts, Mass. 344 (1975).) partnerships and associations. That is especially The ATB relied on the “unambiguous language” so because G.L. c. 156C, §2(5) states that an LLC of Clause Third in concluding that property held is an “unincorporated organization,” albeit one by an LLC would not qualify for exemption with limited liability and some other characteris- because an LLC is not incorporated. The ATB also tics of a corporation. cited G.L. c. 156C, §2(5) and relied on RCN- A corporation (charitable or not) may wish to BecoCom, LLC v. Commissioner of Revenue, 443 isolate a particular activity or property in a Mass. 198, 206 (2005). There, the Supreme separate but controlled entity, due to liability Judicial Court held that under G.L. c. 59, §5, concerns or third-party requirements. An SMLLC Sixteenth, which provides exemption for certain will be especially attractive because it can provide property held by a corporate utility, an LLC was limited liability with (unless otherwise elected) not a corporation and that, accordingly, exemption “disregarded” status for federal corporate income was not available. and state corporate excise tax purposes. For a tax-

Boston Bar Journal • November/December 2007 Case law under Clause Third establishes that an organiza- Comment tion’s declared purposes and actual activities (but not organiza- The ATB’s decision and the RCN-BecoCom decision cited tional form), will be controlling for purposes of exemption. H-C above create concern in two other areas for charitable corpora- Health Services, Inc. v. Assessors of South Hadley, 42 Mass. App. tions wishing to use an SMLLC. Section 85K of G.L. c. 231 Ct. 596 (1997); Brown, Rudnick, Freed & Gesmer v. Assessors of provides a $20,000 limit on certain types of tort claims against a Boston, 389 Mass. 298 (1983). The ATB concluded, however, “corporation, trustees of a trust or members of an association.” that those two cases involved corporations and thus did not It is not clear where an LLC, as an “unincorporated organiza- support reading the term “incorporated” broadly to include an tion,” would fit for purposes of this formulation. Separately, G.L. LLC. The ATB cited case law to the effect that Clause Third, as c. 40A, §3, the so-called Dover Amendment providing exemp- an exemption statute, is to be construed narrowly. tion from certain local zoning rules, refers to a “nonprofit educational corporation.” The ATB dismissed with little discussion a claim by the taxpayers that Clause Third antedated the introduction of The ATB’s interpretation of Clause Third will no doubt chill LLCs in Massachusetts and therefore should not be read to the use of SMLLCs by charitable corporations. If upheld, it deny exemption as a matter of legislative intent and a separate should be corrected legislatively; permitting a charitable parent claim that property held by an SMLLC was effectively held in corporation to hold property in an SMLLC need not change the trust for the benefit of the parent charitable corporation for scope of exemption already available. purposes of one branch of Clause Third.

Recognizing a leader

Honoring a friend

We congratulate our friend and partner Anthony M. Doniger as he begins his term as President of the Boston Bar Association. www.srbc.com

Boston Bar Journal • November/December 2007 Voice of the Judiciary

By Judge Margaret R. Hinkle

Criminal Practice In Suffolk Superior Court

wo significant developments have the trials are usually longer and more complex occurred in Suffolk Superior Court than the average prosecution. In addition, Suffolk T criminal practice in the last three years. County jurors are in chronic short supply. The The first is the successful implementation of time return rate in Suffolk County (the measure of standards. The second, although unrelated, is an how many citizens respond to their jury sum- increase in the frequency of mistrials. My brief mons) is approximately 23 percent, compared commentary summarizes the effect of time with twice that number in other counties. Margaret R. Hinkle standards in Suffolk County and then suggests has been on the techniques that might reduce the number of Suffolk criminal sessions now include a Superior Court mistrials. dedicated session to coordinate time standards since 1993. For cases, a dedicated session to manage homicide the past three years, she has After extensively consulting prosecutors, cases, a dedicated suppression motion session, a been the Regional defense counsel, clerks and the law enforcement traditional first session, a magistrate session and Administrative community, the Superior Court implemented four trial sessions. Suffolk criminal practitioners Justice for Criminal Business in Suffolk criminal time standards in September, 2004. now understand that a “trial date” means that the County. Suffolk County’s pending criminal caseload has trial will take place at or near the target time, since decreased by 57 percent. The number of either six, nine, or twelve months from arraign- trials has increased by 37 percent (224 in 2006 ment, depending on the complexity of the case. from only 164 in 2003). The number of cases older than one year has declined by 81 percent One factor, however, presents special difficul- (from 719 in 2003 to 140 at the end of 2006). ties in Suffolk criminal cases: the increasing These extraordinary results are largely due to number of cases in which the jury is unable to the willingness of the prosecution and defense reach a verdict, requiring a second trial. The counsel to adjust to dramatically new number of mistrials has increased from only expectations. three in 2003 to 19 in 2006. With a jury impasse, not only do jurors feel a sense of incompleteness, This change is remarkable for two reasons. but any mistrial imposes an enormous emotional First, Suffolk County has a huge volume of and financial cost on the prosecution, the homicide cases, approximately 13 percent of its defense, the victim and the Commonwealth. No total caseload. Homicide cases consume a one suggests that this increase is due in any way disproportionate amount of court time. Homicide to the implementation of time standards. In fact, indictments almost always proceed to trial, and no one has offered a plausible explanation for the Boston Bar Journal • November/December 2007 increasing number of mistrials. I suggest some techniques that all women have common attitudes towards those accused of might affect the ability of jurors to reach a verdict. rape, or that all jurors of a particular age or occupation are likely to think the same. First, both prosecutors and defense counsel should give greater attention to expanded voir dire of the jury. After almost Another factor that may influence jurors’ ability to reach a 15 years of talking with jurors post-verdict, I have come to see verdict is the phenomenon sometimes called the “CSI effect.” that an occasional juror should not have been selected for Jurors who regularly watch television shows such as “Law & service. Sometimes a juror is patently unable to concentrate or Order” or “CSI” are conditioned to expect sophisticated reason; other times a juror has plainly prejudged the case; and forensic evidence in criminal cases, pithy examination of sometimes a juror does not understand English well enough to witnesses, and lawyers who never stumble or mumble. Of participate meaningfully in deliberations. course, an actor delivering scripted lines will present a more audience-worthy portrayal than any real-life lawyer. I am not Justice requires stronger advocacy for tailored judicial voir suggesting that every prosecutor should seek to emulate Jack dire. Often, in response to a court invitation to modified voir McCoy or every defense counsel Perry Mason. Still, it is worth dire examination, counsel respond, “Just the statutory ques- remembering that these are the images many jurors bring to tions, judge,” or merely suggest the same voir dire questions our courtrooms. Jurors should not be entertained in our they routinely submit. Certain areas are fertile for more courtrooms, but an effective advocate cannot ignore or talk thorough examination in criminal cases—attitudes toward law down to jurors, whatever the composition of the jury. Never enforcement, gangs, firearms and drugs, to name a few. Juror underestimate jurors’ intelligence, wisdom and common sense, attitudes on these issues affect large numbers of Suffolk and always bear in mind that jurors sacrifice their personal and County cases. professional lives for jury service.

In 2006, the Jury Commissioner’s office revised and expanded the standard confidential juror questionnaire. The present questionnaire provides a basis for additional voir dire examination, particularly about prior experience with the criminal justice system. Counsel should review each juror’s questionnaire carefully. If, for example, a prospective juror shows a sixth grade education, or a juror’s questionnaire manifests a material omission, counsel should request that the judge make further specific inquiry. Likewise, statement of a foreign birthplace may suggest lack of fluency in English, and employment answers may support case-oriented questioning.

Some judges routinely use written juror questionnaires tailored to the particular case. This is another method to provide further information to counsel about a juror’s background and opinions. Written questionnaires may be particularly useful in cases where a juror may find it less embarrassing to write than speak, as in sexual abuse cases.

With expanded judicial voir dire, both the prosecution and the defense stand to gain by a more intelligent use of peremptory challenges. Commonwealth v. Soares and its progeny restrict challenges based on certain group classifications. Despite these cases, it is no secret among the bench or the bar that stereotyping exists in exercise of peremptory challenges. I urge counsel to examine such attitudes as the assumption that

Boston Bar Journal • November/December 2007 Case Focus

By Jeanne Kempthorne Search and Seizure of Computers: Commonwealth v. McDermott, 448 Mass. 750 (2007)

s personal computers have become common- removal of the computers from the premises for the place household appliances, the courts have purpose of a more leisurely off-site search without a Agrappled with the practical considerations of showing that removal from the premises was searching and seizing evidence stored on them. With appropriate or necessary. Moreover, the Court hinted so much information about our lives stored on home that the police need not have even bothered to obtain computers, the police are motivated in almost every a second warrant so long as the search is limited to variety of criminal case to search through the the items identified in the first warrant. suspect’s computer, thereby gaining access to vast realms of unrelated private information. The Court ruled that the police need not present a plan to limit or tailor the scope of the search to the Jeanne How to fetter computer searches to preserve the issuing magistrate — even when the district attor- Kempthorne is in privacy of information outside the scope of the ney’s office has formulated one. Instead, the Court private practice, warrant while at the same time allowing the police to declared that forensic examiners have to be afforded representing de- search computer files effectively is a problem that the “considerable discretion…regarding how best to fendants primarily Supreme Judicial Court tackled in Commonwealth v. proceed with the search” and that advance approval in post-conviction McDermott, 448 Mass. 750, decided in April. In of a search protocol is not necessary. There need not proceedings. From McDermott, the Court announced rules which entrust be probable cause to look in every file; rather, a 1992 to 2003, the police and forensic examiners with great discre- “cursory examination” of stored files is permissible, as she was a fed- tion and latitude to search for evidence in computers long as at the end of the day, the number of files eral prosecutor in as they see fit. printed out is “reasonable” compared to the total Boston, specializ- number of files stored on the media. In short, the ing in white collar After a shooting rampage at McDermott’s work- Court deemed the 750-file output of a 250-word and computer place in Wakefield which left seven of his co-workers keyword search to be reasonable. crime. She has dead, the police obtained a search warrant to look for, served as co-chair among other things, “documents reflecting the Finally, the Court in dicta announced that evidence of the Boston mental state and mental functioning of the defen- the officers come upon in the course of conducting a Bar Association’s dant….” Among the items the police seized were five lawful search may be seized under the plain view Criminal Law computers as well as computer disks. The warrant exception, thus signaling that the Court may not be Section and was had not authorized the police to search for or to seize receptive to a suggestion that, in the future, the plain a member of the a computer. After transferring the computers and view doctrine may need to be curtailed in the context BBA Council and disks to a forensic laboratory, the police obtained a of electronic searches. See Kerr, Orin S., Searches and the Boston Bar second warrant to search through the computers and Seizures in a Digital World, 119 Harv. L. Rev. 531 Journal’s Board of disks for several categories of information, including (2005). Editors. the defendant’s mental state and functioning and his treatment for mental diseases or defects. The police The Court did not address the important question did not describe how they proposed to conduct the of how long the police may take to conduct its off-site search of the electronic data. search of the computer and whether the computer itself must be returned once a digital copy of the drive McDermott challenged the search of his apartment is made. on numerous grounds, all of which were rejected by the SJC. McDermott also complained that the warrant In McDermott, the Court has afforded the police had not specifically authorized the police to search for wide latitude to obtain electronic evidence. Whether or seize the computers, that there was no probable the Court has struck the balance too far toward police cause to search for records related to his mental state, discretion and too far away from privacy rights will that the warrant’s description of such documents was become clear when the courts review searches that insufficiently particular, and that probable cause is reveal evidence of entirely unrelated criminal activity required for the search of each file. or that deprive a person use of an essential household appliance for months on end. Justice Greaney, writing for the Court, found that the warrant’s description of the mental state docu- Case Focus provides a timely, in depth, expert review of ments was sufficiently particular even though the a new decision — federal, state, administrative — of second warrant was unlimited in time. Endorsing the particular importance, or practice area specific. The analogy made by the motion judge (R. Malcolm analysis focuses on the impact on prior case law or Graham, J.) of the seizure of a computer to the statutory interpretation, the complexities/gray areas of the opinion and what practitioners need to know about seizure of a container, the Court sanctioned the the effect the opinion has on their practice.

Boston Bar Journal • November/December 2007 Legal Analysis

By Curtis B.Dooling and Maura M. Pelham

No Judicial Remedy Left Behind: Fulfilling the Commonwealth’s Duty to Educate Its Children After McDuffy and Hancock

Introduction n McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545 (1993), the Su- preme Judicial Court clearly identified the Commonwealth’s duty to educate: “[T]he ICommonwealth has a duty to provide an education for all its children, rich and poor, in every city and town of the Commonwealth at the public school level, and that this duty is de- signed not only to serve the interests of the children, but, more fundamentally, to prepare them to participate as free citizens of a free State to meet the needs and interests of a republican Curtis B. Dooling government, namely the Commonwealth of Massachusetts.”1 The SJC, however, did not identify is an associate at a mechanism to finance that duty. Indeed, in the recent case of Hancock v. Commissioner of Boyle, Morrissey & Campo, P.C., Education, 443 Mass. 428 (2005), the SJC made it clear that the task of providing for and ensuring where he prac- adequate funding for Massachusetts public schools lies not with the Commonwealth’s courts, tices general civil but with the legislative and executive branches, and with the general public. As the fifteenth litigation. anniversary of the McDuffy decision approaches, this article provides a look back at McDuffy, an assessment of current circumstances and some suggestions for the future. Our intention is to encourage members of the bar to be instrumental in developing a sustainable system of financing public education.

The Litigation of Public Education Funding: A History of McDuffy and Hancock Prior to the 1990s, public education financing in Massachusetts “was governed by a loosely connected melange of statutes, local regulations, and informal policies.”2 While the Commonwealth Maura M. mandated state aid for local public school education, its “statutory guidelines went largely un- Pelham is an as- heeded, leaving cities and towns at the mercy of unpredictable annual appropriations from the sociate at Mintz, Legislature.”3 As a result, property-poor districts were affected the most because they lacked local Levin, Cohn, revenue sources to educate their students. From McDuffy in 1993 to Hancock in 2005, plaintiffs Ferris, Glovsky sought solutions to the public education funding dilemma in the Commonwealth through litigation. and Popeo, P.C., where she The problems addressed in McDuffy begin with the fact that public schools in the Commonwealth practices in the receive funding from three separate sources: local, state and federal governments. The local Employment, property tax is the main source of school funding. In fiscal year 2004, for example, local funding Labor and amounted to approximately 53.6% of total education funding, state aid amounted to 39.8% and federal Benefits Section. aid made up the remainder. Yet municipalities face strict limits to raising revenue including the constraints of Proposition 2 ½.4

In the decade leading up to McDuffy, federal funds only accounted for approximately four to five percent of school funding and generally targeted specific programs, with some municipalities receiving no federal funds. In addition, the Massachusetts legislature appropriated state aid in an inconsistent manner. While a statutory formula, G. L. c. 70, was enacted in 1978 to allocate funding to municipalities and “reduce the reliance upon the local property tax in financing public schools,”5

Boston Bar Journal • November/December 2007 the legislature essentially ignored the G.L. c. 70 funding formula importantly, the ERA increased the Commonwealth’s and continued to allocate state aid to public schools through the spending on education in an effort to minimize the gap annual budget appropriation process, leading to unpredictable between poor and wealthy districts. In the years since results. As a result, municipalities could not depend on a minimum McDuffy, Massachusetts has allocated over $40 billion to amount of state aid. Some municipalities received additional state education, and annual increases in state aid to cities and assistance through various educational grant programs. But this towns average approximately twelve percent.11 Despite this funding also was unpredictable and exacerbated the disparity in progress, students from poor school districts again sought a the quality of public schools from one district to another. remedy to the school funding disparity through the court system, and returned to the SJC for relief in Hancock. Frustrated with this situation, in 1978, students from less affluent districts sought a judicial remedy for this disparity and The SJC referred the matter to Judge Margot Botsford, sued the state in McDuffy. In 1985, a single justice of the SJC then of the Superior Court, to reexamine the state’s progress referred the case to a master with orders to make findings of fact since McDuffy to determine whether the Commonwealth had and rulings of law. The litigation stalled again for approximately since met its constitutional mandate to educate its children. five years. In 1990, theMcDuffy plaintiffs filed a restated complaint After a lengthy trial, Judge Botsford concluded that the state and a renewed motion for class certification. The SJC finally ruled was not meeting its duty, and generated a comprehensive, on McDuffy in 1993, fifteen years after the suit was originally filed. well-articulated report detailing her findings and presenting In its decision, the SJC interpreted the Education Clause of the recommendations to the SJC. The SJC, however, rejected Massachusetts Constitution as imposing “an enforceable duty” on Judge Botsford’s conclusions in a 5-2 plurality decision, and the Commonwealth to provide an education to its children “without held that the Commonwealth currently was meeting its regard to the fiscal capacity of the community or district in which constitutional duty. The court recognized the significant [they] live.”6 The court also concluded that the Commonwealth progress made since McDuffy and applauded the legislature was under a constitutional obligation to provide all public school for demonstrating a commitment to improving the public students with an adequate education. Moreover, the court consid- school system. Chief Justice Marshall’s opinion and Justice ered whether the Massachusetts school financing system at the Cowin’s concurring opinion both acknowledged that courts time was constitutional, and held that it was not. are not the appropriate vehicle to pursue educational policy goals, and left the responsibility to the elected branches. Despite this holding, the court declined to find any statute Indeed, Justice Cowin succinctly stated, “The plaintiffs’ regarding school funding unconstitutional and failed to suggest remedy, as it always is with political questions, is at the ballot any specific requirements that would meet the state’s duty. Rather, box.”12 the court “articulate[d] broad guidelines” concerning the capabilities that an educated child must have.7 That court held that an The Future of Public Education Financing: adequately educated child “must possess” sufficiency in the The Commonwealth’s Options following capabilities: (1) oral and written communication skills; (2) As outlined above, the legislature has shown a commit- knowledge of economic, social and political systems; (3) under- ment to increase education funding and to equalize student standing of governmental processes; (4) self-knowledge of his or spending by setting a foundation budget from which to work. her mental and physical wellness; (5) grounding in the arts; (6) Despite the legislature’s attempts to improve the G.L. c. 70 advanced preparation in either academic or vocational fields so as funding formula and equalize district-to-district spending, to enable a child to choose and pursue a career; and (7) academic municipalities still struggle to provide their share of the or vocational skills to enable a public school graduate to compete contribution sufficient to meet the foundation budget. favorably within the job market.8 The court, however, left the Disparities still exist between property-rich communities and details of implementation to the legislative and executive branches, property-poor communities. A community with high property concluding, “it is [their] responsibility…to take such steps as may values and commensurate taxes continues to have the ability be required in each instance effectively to devise a plan and to spend more than its level of state aid on its public schools, sources of funds sufficient to meet the constitutional mandate.”9 whereas a community with lower property values is much more dependent on state aid, creating a disparity that will Three days after the McDuffy decision, the legislature enacted exist as long as property taxes remain the main source of and Governor Weld signed the Education Reform Act (ERA) of education funding. 1993. The ERA overhauled school funding in the Commonwealth and established new academic criteria for schools, teachers and One proposal to eliminate this disparity is to create a students. The ERA radically restructured the state’s funding dedicated funding source from which the Commonwealth system for public education in the Commonwealth by establishing can allocate funds to every municipality, thereby reducing a foundation budget for each school district. The budget is based reliance on the property tax and alleviating the uncertainty of on a complex 32-step formula calculating how the cost of public state aid derived from the confusing and unpredictable education is to be divided between state aid and local contribution. annual budget appropriation process. Recently, the legisla- The ERA also developed and implemented “curriculum frame- ture adopted this approach to solve another public school- works” for public schools, which “present broad pedagogical related funding problem that created disparities between approaches and strategies for assisting students in the develop- municipalities. In 2004, the Commonwealth overhauled the ment of the skills, competencies and knowledge called for by these manner in which public schools are built and funded by standards.”10 The law also established a system of statewide creating the Massachusetts School Building Authority and standardized tests, known as MCAS, and strengthened teacher dedicating one cent of the state sales tax to the School certification and professional development requirements. Most Modernization and Reconstruction Trust Fund.13 By creating

10 Boston Bar Journal • November/December 2007 a dedicated and sustainable revenue source, the Commonwealth sufficient funding. Moreover, even if courts attempt to force the eliminated the uncertainty that municipalities faced when legislature to appropriate a certain level of funding, the legisla- applying and waiting for reimbursements from the state for new tive branch may be reluctant to succumb to judicial mandates or school construction. may not have sufficient funding sources to meet such mandates. Many states, including Massachusetts, are not permitted to This paradigm is not novel for the Commonwealth. Historically, spend money that they do not have in their treasury. Unlike the the Commonwealth funded the Massachusetts Bay Transporta- federal government, which can spend money on “credit” by tion Authority (MBTA) directly out of annual general revenues, borrowing and spending, the Commonwealth can only appropri- subject to the vagaries of the annual legislative budget process. ate that which it receives in tax revenue.15 Like education and school building funding, MBTA funding through this process was inconsistent and sometimes insuf- The solution to the education funding problem may lie ficient even to maintain existing services. In 1999, however, the elsewhere. Some suggest that privatization of public schools is legislature dedicated one cent of the state’s annual sales tax the answer. In 2002, the City of Philadelphia implemented the revenues to the MBTA, enabling it to operate on a dedicated and largest experiment to date in the private management of public consistent revenue source. schools by privatizing forty-five public schools. Five years later, research has shown no measurable difference in student Similarly, if a percentage of the sales tax were dedicated to a achievement between students educated in traditional public public school trust fund, cities and towns would be guaranteed a schools and those educated in the privately managed schools. certain amount of funding not heavily dependent on the state’s Private management of public schools is a somewhat radical coffers or the political gamesmanship prevalent in the budget approach. The lack of clear success means that private manage- appropriation process. In order to generate a sufficient amount ment is highly unlikely to garner the political support that would of funding, the sales tax could be increased. Of course, any be necessary for widespread adoption. mention of raising taxes can create political turmoil. However, a dedicated grassroots effort to educate the residents of the A somewhat more measured approach is the expansion of Commonwealth on the advantages of a slight increase in the charter schools, which were created as a part of the ERA. sales tax in an effort to eliminate the reliance on the local Charter schools are public schools that operate independent of property tax could lead to a viable political solution. Both local school committees and the state’s Department of Education. members of the legislature and their constituents may be willing Despite having vocal opponents, charter schools have been to consider creating a dedicated state funding source for education in order to alleviate the pressure on local property taxes.

Michigan voters, facing many of the same problems currently facing Massachusetts schools, approved a ballot initiative in 1994 that overhauled the way in which its public schools were funded by increasing the state sales tax from 4% to 6% and dedicating the increased revenue to school aid.14 In addition, several other states are considering state constitutional amendments to ensure that certain education funding benchmarks are met. Both New Hampshire and Ohio, reacting to a wave of litigation, recently considered constitutional amendments to establish a minimum level of state spending on public education. In New Hampshire, Governor Lynch introduced an amendment guaranteeing each community a minimum amount of state aid to ensure that every child receives an adequate education. Proponents believed that the amendment would have eliminated funding disparities by guaranteeing a minimum amount of state aid to property-poor communities while opponents argued it still would place the onus of funding on municipalities, which can only generate revenue via the property tax. The New Hampshire legislature, however, rejected Governor Lynch’s constitutional amendment proposal in June 2007, and instead enacted legislation defining an adequate education in July 2007.

While the idea of a constitutional amendment may be attractive, an amendment may not be adequate where a sustainable, dedicated funding source is not identified. A constitutional amendment with language purporting to guarantee every child an adequate education is illusory if courts cannot or will not force the legislature to appropriate

Boston Bar Journal • November/December 2007 11 successful in the Commonwealth as 2 Hancock v. Comm’r of Educ., 443 Mass. 9 McDuffy, 415 Mass. at 620-21. evidenced by the long waiting lists to 428, 436 (2005). 10 G. L c. 69, § 1E (2006). enroll children who choose charter 3 Id. 11 Hancock v. Driscoll, No. 02-2978, 2004 schools over traditional public schools. 4 In 1980, Massachusetts voters approved WL 877984 at *8 (Mass. Super. Ct. Apr. 26, However successful charter schools have an initiative proposal commonly referred 2004). been, they still operate on inconsistent and to as Proposition 2 ½, which is codified in 12 Hancock, 443 Mass. at 473. See Maura insufficient state aid. Moreover, charter G. L. c. 59, § 21C. Proposition 2 ½ strictly M. Pelham, Note, Promulgating Preschool: school opponents argue that charter limits the amount of property taxes a What Constitutes a “Policy Decision” Under schools drain funding away from tradi- municipality may collect to no more than Hancock v. Commissioner of Education?, tional public schools and further exacer- 2 ½ percent of the value of property in 40 New Eng. L. Rev. 209 (2005), for a bate the funding shortfall. a city or town. See Mass. Teachers Ass’n discussion of the Hancock decision v. Sec’y of the Commonwealth, 384 Mass. and a history of the litigation of public Conclusion 209, 215 (1981). In order for a municipality education financing in Massachusetts and The SJC is not going to interject itself to collect property taxes above the limit nationwide. into the public school financing debate by set forth in the statute, two thirds of the 13 G. L. c. 10, § 35BB. As the mandating funding or forcing the legisla- municipality’s voters must approve an Commonwealth’s sales tax currently tive or executive branches to operate or override. Accordingly, Proposition 2 ½ stands at 5%, one cent represents 20% of fund public schools in a certain way. The limits the amount of funds available to a the sales tax. general public and members of the bar municipality to spend on its public schools 14 Prior to 1994, local property taxes must work with their elected officials to and as a result, override elections are accounted for approximately 68% of ensure that all of our public schools are common when a municipality does not school funding in Michigan. Seven years properly funded and that our school-aged receive sufficient state aid or faces local later in 2001, state funding accounted for children receive the education they and budget deficits. approximately 80% of public school funding the Commonwealth deserve. In helping to 5 1978 Mass. Acts. p. 358-59. in total, greatly reducing local property shape these solutions, lawyers will need to 6 McDuffy, 415 Mass. at 621. taxes. Debate Over Proposal A Continues work outside the courtroom to put their 7 Id. at 554. Seven Years Later, Mich. Educ. Rep., Fall advocacy and problem solving skills to 8 “If this standard is taken literally,” one 2001, http://www.mackinac.org/pubs/ work. scholar noted, “there is not a public mer/article.asp?ID=3752 (last visited Oct. Endnotes school system in America that meets it.” 1, 2007). 15 1 McDuffy v. Sec’y of the Executive Office of William E. Thro, A New Approach to State See Mass. Const. art. LXII, §§ 1-4. Educ., 415 Mass. 545, 606 (1993). Constitutional Analysis in School Finance Litigation, 14 J.L. & Pol. 525, 548 (1998).

When you need to refer a case...

Attorneys across the state in 350+ areas of the law charge $25 or less for a half-hour consultation. (617) 742-0625 www.bostonbar.org/lrs

The only referral service in Massachusetts to meet ABA standards.

12 Boston Bar Journal • November/December 2007 The Profession

By Christine P. Burak and Marc G. Perlin

Making and Amending the Massachusetts Rules of Civil and Appellate Procedure

ny attorney who commences a civil action in to govern procedure in the courts of the Common- the trial courts of Massachusetts must have wealth. The rules ultimately became effective on Aan in-depth understanding of the Massachu- July 1, 1974. setts Rules of Civil Procedure. From pleadings, The Standing Advisory Committee through discovery and trial, to post-judgment When the Mass. R. Civ. P. and Mass. R. App. P. motions, the civil rules provide the basis for every became effective, the Supreme Judicial Court procedural step in the litigation process. Despite established the Standing Advisory Committee on the importance of the Rules, which have the “force the Rules of Civil and Appellate Procedure (SAC) to Christine P. Burak of law” and are “binding upon the parties and the consider issues arising from the introduction of the is Senior Counsel court,” State Board of Retirement v. Bulger, 446 new rules. Since that time, the SAC has met to the Supreme Mass. 169 (2006), many practitioners often have Judicial Court regularly to assist the Supreme Judicial Court in little understanding of how the civil rules were and is Secretary reviewing and amending the rules of civil and promulgated, how they are reviewed, and how they to the Rules appellate procedure. Members of the SAC are Committee of the are amended. appointed by the Supreme Judicial Court and Supreme Judicial Court. This article is intended to provide an overview of include judges, court clerks, the practicing bar, and the process in Massachusetts for making and law professors. Appointments to the committee are amending rules, focusing on the Massachusetts for a three-year term, and members are eligible to Rules of Civil Procedure (Mass. R. Civ. P.) and the be reappointed to one additional term. Massachusetts Rules of Appellate Procedure (Mass. The Reporter to the SAC—also appointed by the R. App. P.). Most of what follows, however, also Supreme Judicial Court—is charged with assisting describes the process for promulgating and the committee in drafting and reviewing proposed amending the Massachusetts Rules of Criminal amendments to the rules. The Reporter also drafts Procedure. the Reporter’s Notes that are issued when there is Unlike the process described in this article for a new rule or an amendment. The Reporter’s Notes Marc G. Perlin is the Mass. R. Civ. P. and Mass. R. App. P., the often contain background information about the Associate Dean drafting of the separate sets of rules and amend- rationale for a rule change and may indicate and Professor of ments for the seven trial court departments, for the whether the change has been drawn from amend- Law at Suffolk Appeals Court, and for the organizations affiliated ments to the Federal Rules of Civil Procedure or University Law with the Supreme Judicial Court (such as the Board some other source. Although the Reporter’s Notes School and is the Reporter to the of Bar Examiners and the Board of Bar Overseers), may be helpful to attorneys and courts seeking to Standing Advisory originates in those courts and organizations. The understand and interpret the rules, the Reporter’s Committee of resulting rules are subject to review and approval Notes are not part of the formal rules, are “not the Supreme by the Supreme Judicial Court before they become officially approved or reviewed” by the Supreme Judicial Court on effective. Judicial Court, and “are not binding” on the Court. the Rules of Civil Aldoupolis v. Commonwealth, 386 Mass. 260 (1982) and Appellate Adoption of the Civil and Appellate Rules (Reporter’s Notes to the Massachusetts Rules of Procedure. In the early 1970s, an Advisory Committee made Criminal Procedure). up of judges, lawyers, academics, and legislators drafted the original versions of the Mass. R. Civ. P. The SAC also monitors amendments to the and the Mass. R. App. P. The Advisory Committee’s Federal Rules of Civil Procedure to ascertain product was reviewed by the Supreme Judicial whether the SAC should recommend an amend- Court, which, on July 13, 1973, ordered that the ment to any similar provision of the Massachusetts Mass. R. Civ. P. and the Mass. R. App. P. be adopted Rules. Because the Massachusetts Rules of Civil

Boston Bar Journal • November/December 2007 13 Procedure were modeled after the Federal Rules, it is appropri- Current Work of the Standing Advisory Committee ate to look to the Federal Rules in interpreting the Massachu- The Supreme Judicial Court recently asked the SAC to setts Rules and in determining whether amendments should consider whether a rule limiting inclusion of personal data be proposed. See Rollins Environmental Services, Inc. v. identifiers in court filings should be adopted. Personal data Superior Court, 368 Mass. 174 (1975). identifiers include such matters as Social Security numbers, bank account information, dates of birth, and other private Any interested individual or organization can suggest matters, the public disclosure of which could lead to concerns changes to the rules. Over the years, suggestions to review about individual security and identity theft. Inclusion of such existing rules and to recommend changes have come from the matters in court filings has become a matter of great interest Supreme Judicial Court, the trial courts, attorneys, judges, bar in federal and state courts in light of the increasing availability associations, and the SAC itself. When the Court receives of court filings via the Internet, making these documents easily suggestions regarding amendments to the Mass. R. Civ. P. or accessible to anyone with a computer. Mass. R. App. P., it generally refers them to the SAC for consideration and recommendation. Suggestions are then After discussion, the members of the SAC agreed that the placed on the SAC’s agenda and discussed at a meeting. After inclusion of personal data identifiers in court filings was a full consideration, the SAC determines whether to adopt, subject of general concern, and so reported to the Court. The modify, or reject the suggestion or proposed amendment. Court thereafter authorized the SAC to appoint a special When the SAC adopts a suggestion or proposed amendment, it subcommittee with members from each of the trial courts, the typically directs the Reporter to draft the language of the Standing Advisory Committee on the Rules of Criminal amendment and an explanatory Reporter’s Note. At the next Procedure, and the bar. The subcommittee was charged with meeting, the SAC considers the Reporter’s draft amendment studying the issue on a court-wide basis and making recom- and note. If no additional changes are made, the SAC members mendations to the SAC. The subcommittee currently has the vote on the draft. issue under consideration, including a review of the amendments to the federal rules scheduled to become effective on Before making any recommendation to the Supreme Judicial December 1, 2007. These federal amendments limit the Court, the SAC publishes the proposed amendment for public inclusion of a variety of personal data identifiers in federal comment both in Massachusetts Lawyers Weekly and on the court filings. The volume and variety of matters filed in the website of the Supreme Judicial Court at http://www.mass. Massachusetts state courts suggest that the study and treat- gov/courts. The period for comment depends on the nature of ment of this issue will be complex. the proposed amendment; it can range from four weeks to several months. Comments may be submitted to the SAC by Other complex issues are on the horizon. For example, the U.S. mail or by electronic mail. The SAC has not prescribed SAC currently is monitoring the implementation of the any particular format for submission of comments. electronic discovery rules in the federal courts, with a view toward evaluating experience in those courts before consider- After the deadline for submission, the SAC reviews the ing any possible amendments to state court rules. This comments at a meeting, may make changes to the amendment, monitoring period will give the SAC the opportunity to address, and votes on a final proposal for submission to the Supreme in its future recommendations, any problems that may arise Judicial Court. under the federal rules.

Consideration by the Supreme Judicial Court Conclusion The SAC sends its final recommendation to the Rules The significant impact of court rules on Massachusetts Committee of the Supreme Judicial Court, which is comprised practice suggests the importance of the deliberative process of three Associate Justices of the Court. Currently, the that is followed by the SAC and the Supreme Judicial Court Committee is chaired by Justice Greaney, and Justices Ireland before the Court promulgates any new civil rule or amend- and Cowin serve as members. The Rules Committee considers ment. As part of that process, the Court and the SAC welcome the recommendation and then presents the matter to the Full Court for action at an Administrative Meeting of the Court. comments on existing rules, on proposed rules, and on the process for amending rules. The views of the bar and bench When the Justices approve a proposed rule or amendment, are essential to the work of the SAC, and are a critical part of an Order is signed by the Justices promulgating the rule or the process for making and amending rules in Massachusetts. amendment and setting forth its effective date. After the Order has been signed by the Justices, it is filed in the Office of the Clerk of the Supreme Judicial Court for the Commonwealth. The authors gratefully acknowledge the helpful comments The Clerk’s Office distributes copies to legal publishers, court made by Jerome P. Facher, Esq., Chair of the Standing Advi- officials, and interested parties. Newly adopted rules are also sory Committee on the Rules of Civil and Appellate Procedure, published on the Supreme Judicial Court website. and Senior Counsel at WilmerHale.

14 Boston Bar Journal • November/December 2007 Practice Tips

By Peter M.Casey

Joint Defense Agreements

n August 2007, the Supreme Judicial Court example, a public company under criminal gave its stamp of approval to joint defense investigation may have several reasons not to Iagreements (“JDA”). Hanover Ins. Co. v. Rapo enter into a JDA with employees possibly involved & Jepsen Ins. Services, Inc., 449 Mass. 609 (2007). in wrongdoing. Because prosecutors generally A JDA permits defendants with common legal take a dim view of a refusal to disclose informa- interests to share individual attorney-client tion obtained from employees, a company may communications and work product without waiver lose any credit for “cooperation” if it has commit- as to third parties. JDAs facilitate a free flow of ted not to disclose such information. The Depart- Peter M. Casey is information among counsel with similarly situated ment of Justice’s guidelines on corporate a shareholder at clients. The benefits of a JDA, however, do not prosecution also note that a prosecutor should Greenberg Traurig, always outweigh the risks. assess “cooperation” in part based on “whether LLP in Boston. He the corporation appears to be protecting its defends securities culpable employees or agents,” for example, by class actions, share- General Features holder derivative Derived from the “common interest doctrine,” “providing information to the employees about the claims, securities a JDA implements an exception to the rule that government’s investigation pursuant to a joint enforcement matters disclosure of a privileged communication to defense agreement.” and other commer- another results in waiver of the privilege. A JDA cial and financial Another important threshold consideration is protects only communications that are privileged disputes, many of the potential for conflict and disqualification of in the first place and that relate to a common legal which involve finan- counsel. One party to a JDA may mistakenly, but cial and accounting interest. Each party to a JDA agrees not to justifiably, believe that she has an attorney-client fraud claims. disclose any information received from the other relationship with lawyers representing other parties. A unilateral breach of that agreement will parties. If she later becomes adverse, lawyers for not result in any waiver of the other parties’ remaining participants may be disqualified from privilege. continuing to represent them vis-à-vis the now- The courts originally recognized the common adverse party. Further, even absent any privileged interest doctrine to protect legal advice from one relationship, a lawyer bound not to disclose a non- attorney representing two or more clients. JDAs client party’s confidences may still run the risk of now are commonly used by separately-repre- subsequent disqualification. Counsel for co- sented co-defendants in civil and criminal defendants who may later become adverse need proceedings. Plaintiffs may share privileged to think carefully before using a JDA. communications under the common interest doctrine. Indeed, the doctrine is not limited to Risks and Limitations litigation but may apply to any legal advice. A JDA is not bullet-proof protection against discovery by third parties. Counsel will need to Whether to Use a JDA make judgment calls. For example, to be pro- JDAs present risks as well as advantages. For tected, the shared privileged communication

Boston Bar Journal • November/December 2007 15 must relate to a common legal interest. A common business or • Client involvement commercial interest will not suffice. The distinction is not Hanover held that a client’s consent to create a JDA is always crystalline. To illustrate, an underwriter and an issuer unnecessary, while observing that it is “preferable” to have the same interest in ensuring that an offering document get consent to “disclose a privileged communication in contains accurate disclosure. The issuer’s disclosure to the the event a joint defense agreement is found not to underwriter of privileged communications about company exist.” Hanover’s permissiveness aside, counsel should litigation, however, likely results in waiver. See In re John Doe ask the client to review and sign a written JDA. If Corp., 675 F.2d 482 (2d Cir. 1982). feasible, get specific client consent before disclosing confidences or privileged communications. Client participation in JDA discussions with counsel should not defeat the protection. The scant case law suggests, • Confidentiality however, that direct communications between the parties The essence of a JDA is each party’s commitment to themselves, without counsel present, will not be protected. keep confidential all others’ privileged information. The Indeed, although the “party-to-party” circumstance was not at parties, however, will also want to agree that (1) no issue in Hanover, the Court stated that the common interest member is obligated to disclose any privileged informa- doctrine prevents waiver when the privileged communication tion to any other member; and (2) each member may is “shared, in confidence,with an attorney for a third person disclose his or her own privileged information as having a common legal interest for the purpose of rendering deemed fit. legal advice to the client.”

Special problems arise when a participant withdraws or • Co-defendant disputes defects to the other side. For example, if counsel for a criminal Once a party to a JDA discloses protected information defendant acquires privileged information under a JDA from a to another party, the privilege is waived as to the co-defendant who later agrees to testify for the government, recipient, who may use it in any subsequent dispute counsel may be prevented from using that information to between the two. Thus, a JDA should bar all parties cross-examine the defector at trial. The case law in this area is from use of any acquired privileged information against mixed. In any event, conflict and disqualification issues may the others. be addressed, at least partly, in the JDA.

When deciding whether and how to use a JDA, consider: • Withdrawal A JDA should require each member to give notice of intent to withdraw, and upon withdrawal require the •The relevant law return of all shared work product and notes of privi- Massachusetts courts have only now validated use of leged discussions. Some JDAs provide that members JDAs. The First Circuit did so in 1989. U.S. v. Bay State forfeit the JDA’s protections upon withdrawal, although Ambulance and Hosp. Rental Service, Inc., 874 F.2d 20 such a clause may be a deterrent to joining. (1st Cir. 1989). Most states, however, have not addressed JDAs. Review the applicable law to assess a JDA’s availability and usefulness. • Only one client and conflict waiver Each party should acknowledge that the JDA creates no attorney-client relationship, and that each attorney • Importance of writing acts only on behalf of his client. Further, to minimize Hanover held that an oral JDA is enforceable. Ordinar- subsequent disqualification, each party should waive in ily, though, counsel should create a written agreement. advance any conflict from the agreement itself or any Aside from eliminating doubt of its existence, a written information received under it. agreement can cover specific contingencies that otherwise would remain unaddressed or vague. Note In practice, there exists a fair amount of informality among that the agreement itself may be discoverable or counsel in exchanging information in joint defense situations. subject to in camera inspection if a relevant issue But remember that clients, like nations, have no permanent arises. enemies or allies—only permanent interests. Put a JDA in writing. Insist that the client understand and sign it. The • The legal “interest” discipline will create a common benefit. A written agreement spelling out the common legal interest in detail reduces possible misunderstanding over what information may be shared.

16 Boston Bar Journal • November/December 2007 Legal Analysis

By Michele L. Adelman and Catherine N. Karuga

A Low Dose Prescription: Criminal Prosecution of Off-Label Drug Promotion

Overview Drug company scientists discover that a rare debilitating disease may be treated with a drug licensed to treat an unrelated ailment. The Food and Drug Administration (“FDA”) has not approved the drug for the rare disease. While the company begins time consuming and expen- sive clinical trials to test this discovery, patients with the rare disease ask their doctor for the drug. Doctors seek as much information as possible on this “off-label” use. The drug company wants to get the word out quickly about the new use. Michele L. Adelman is Counsel in the • Should a drug company be permitted to promote the drug for the new use before FDA Business Crimes approval, and if so, what can the company say? and Government • Should doctors be permitted to prescribe a drug for an unapproved use, and if so, under Investigations Group at Foley Hoag LLP. She what conditions? previously served as • If doctors can prescribe the drug, how do they obtain information on the correct dosage and Deputy Chief of the adverse side effects? Criminal Bureau of the Massachusetts Attorney • Under what circumstances can a company provide “off-label” information to doctors? General’s Office and as an Assistant The answers are unclear. Permitting a drug company to promote off-label uses results in U.S. Attorney for the faster and more efficient dissemination of information to doctors that in turn may save the lives Eastern District of New of patients with certain terminal diseases1 and in relief for patients with rare diseases who often York. must rely upon off-label uses to treat their disease. Prohibiting off-label promotion encourages drug companies to conduct appropriate studies before promoting a drug.

Faced with these issues, the government has essentially opposed drug company promotion of off-label uses. While doctors are allowed to prescribe drugs for off-label uses, drug companies are prohibited from promoting drugs for such uses in most circumstances.2 The rationale is to protect the public from drug use that does not meet FDA standards, while protecting doctors’ medical discretion to treat patients. An inherent inconsistency exists. While doctors are most knowledgeable in diagnosing their patients, drug companies are most knowledgeable Catherine N. Karuga is an Associate in about their drugs. Accordingly, the party most knowledgeable about the drug cannot explain to the Business Crimes doctors the drug’s treatment qualities, dosing regimen and adverse effects. and Government Investigations Group Nonetheless, off-label drug use is widespread. A 2004 study involving 355,409 hospitalized at Foley Hoag LLP. patients 18 years or younger showed that doctors treated almost 80% of them with at least one

Boston Bar Journal • November/December 2007 17 off-label drug. Off-Label Drug Use in Hospitalized Children, Archives of Pediatrics & Adolescent Medicine, Vol. 161, No. 3 (March 2007).3 During 1997 hearings, Senator Frist testified that off-label uses constituted 40-60% of all drug prescriptions, over 70% of all pediatric drug prescriptions, and as much as 90% of all oncology prescriptions. 143 Cong. Rec. S8162-02 (daily ed. July 28, 1997). Government programs often reimburse such uses. Medicare covers off-label uses of cancer drugs if included in certain medical com- pendia. 42 U.S.C. § 1395x(t)(2).

Off-label drug prescriptions have spawned criminal charges of off-label promotion by drug companies and their agents, malpractice claims against doctors who prescribed drugs for off-label uses, insurance coverage disputes for off-label drug treatments, and class action litigation by off-label drug users alleging injury. This article focuses solely upon criminal charges.

Criminal Prosecution of Off-Label Drug evidence that the defendant “intentionally violated § 331 with Promotion the specific intent to defraud or mislead an identifiable government agency.” United States v. Arlen, 947 F.2d 139, 143 Drug promotion takes many forms: sponsored educational (5th Cir. 1991), cert. denied, 112 S. Ct. 1480 (1992); United seminars on drug uses, distribution of journal articles and States v. Varela-Cruz, 66 F. Supp.2d 274, 278 (D.P.R. 1999); reference texts discussing drug uses, and sales representative United States v. Bansal, 2006 U.S. Dist. LEXIS 53475 *11 (D.Pa. discussions with medical professionals on drug uses. Off-label Aug. 1, 2006). drug promotion comes into play when a drug company includes off-label uses in its promotional activities. First Amendment Implications No statute explicitly criminalizes off-label drug promotion. With few indictments charging the crime of off-label Prosecutors, however, have charged off-label drug promotion promotion, there has been little opportunity for the articula- under statutes prohibiting the promotion of “misbranded” and tion of legal defenses. Of relevance is a lawsuit brought by the “new unapproved” drugs. Washington Legal Foundation in opposition to the Food and Drug Administration Modernization Act’s (“FDAMA”) The Food Drug and Cosmetic Act (“FDCA”) prohibits the restriction of a drug company’s ability to distribute clinical introduction of a misbranded drug into interstate commerce. reports on off-label drug uses. There, the court accepted the 21 U.S.C. § 331(a). A drug is misbranded if its labeling is “false argument that the FDAMA impermissibly restricted commer- or misleading,” 21 U.S.C. § 352 (a), or if its labeling does not cial speech in violation of the First Amendment. Washington contain “adequate directions for use,” 21 U.S.C. § 352 (f)(1). Legal Foundation v. Friedman, 13 F. Supp. 2d 51 (D.D.C. 1998). The government has charged that off-label drug promotion This First Amendment argument is equally applicable to furthers the introduction of a drug label that “misleadingly” criminal prosecutions. fails to address or provide directions for the off-label use. Off-label promotional activities may be considered commer- The FDCA also prohibits the introduction of an unapproved cial speech. The constitutional validity of restrictions on off- new drug into interstate commerce. 21 U.S.C. § 331(d) and label promotion is analyzed using the four-pronged test 355(a). The government has charged that off-label drug established in Central Hudson Gas & Electric Corp. v. Public promotion causes the introduction of an “unapproved new Service Commission of New York, 447 U.S. 557 (1980). The first drug,” i.e., a drug marketed for an unapproved new use. prong requires that the speech be neither unlawful nor Misdemeanor and felony charges and civil remedies are all inherently misleading. Truthful, off-label promotion passes available to the government. To bring misdemeanor charges, this test because it concerns a lawful activity, i.e., the prescrip- the government need only prove willfulness, while felony tion of drugs. Washington Legal Foundation, 13 F. Supp. 2d at charges require proof of “intent to defraud or mislead.” 21 U. 66-69. The second prong requires that the government’s S.C. § 333(a)(1) and (2). While the meaning of “intent to interest in the restriction be substantial while the third prong defraud or mislead” under § 333 remains unsettled, caselaw requires that the restriction directly advance that substantial suggests that, at a minimum, the government must introduce interest. These tests are arguably satisfied as the government

18 Boston Bar Journal • November/December 2007 has a substantial interest in encouraging drug companies to Bristol-Myers Squibb seek FDA-approval of off-label uses and restrictions on off- In September 2007, Bristol-Myers Squibb Company label promotion advance this interest. Id. at 71-72. (“BMS”) and its subsidiary Apothecon, Inc. (“Apothecon”) entered into a civil settlement agreement with the U.S. It is the final prong—requiring that the restriction be no Attorney’s Office and Department of Health and Human more extensive than necessary to further the government Services, Office of the Inspector General (“OIG”) regarding interest—that the FDAMA failed to satisfy. The Supreme the company’s sales and marketing practices including Court has stated “that if the Government could achieve its alleged violations of 21 U.S.C. § § 331(a) and (d), through off- interests in a manner that does not restrict speech, or that label promotion of the drug Abilify; two unrelated violations of restricts less speech, the Government must do so.” Thompson the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)(2), v. Western States Medical Center, 535 U.S. 357, 371 (2002). In through illegal remuneration to retail pharmacies, wholesal- Washington Legal Foundation, the court found the FDAMA to ers and physicians; and three separate violations of the False be unconstitutional because the FDA could have required Claims Act, 31 U.S.C. § § 3729-33, through maintaining drug companies to provide complete and unambiguous inflated prices for its drugs and misreporting its pricing of disclosures that the “off-label” uses were not FDA-approved. drugs. Under the agreement, BMS and Apothecon agreed to Washington Legal Foundation, 13 F. Supp.2d at 73-74. This pay in excess of $515 million. BMS also entered into a disclosure would provide an effective and less burdensome Corporate Integrity Agreement (“CIA”) 7 with the OIG relating alternative to FDAMA restrictions. The court identified many to off-label promotion. No criminal charges were filed. benefits with this approach, including: (1) “[a] physician would be immediately alerted to the fact that the ‘substantial Pharmacia & Upjohn evidence standard’ [of FDA approved drugs] had not been In March 2007, the U.S. Attorney’s Office entered into a 36- satisfied, and would evaluate the communicated message month deferred prosecution agreement with Pharmacia & accordingly;” (2) “permitting this limited form of manufac- Upjohn Company LLC (“Pharmacia”), a subsidiary of Pfizer, turer communication still leaves more than adequate incen- Inc. (“Pfizer”), arising out of Pharmacia’s promotion of tives compelling drug manufacturers to get new uses Genotropin for off-label uses. The Information charged approved by the FDA;” (3) “to the extent that physicians look Pharmacia with distribution of an unapproved new drug in to FDA approval as an important (or the exclusive) indication violation of 21 U.S.C. §§ 331(d), 333(a) (2) and 355(a). of safety and effectiveness, and either will not prescribe or are Pharmacia agreed to pay $15 million; if it violates any provi- reluctant to prescribe absent such approval, manufacturers sion of that agreement, the U.S. Attorney’s Office may file the will seek to obtain FDA approval to make their products more Information. Pfizer also entered into a five-year CIA which appealing to the market;” and (4) “off-label prescriptions, required that Pharmacia establish a “Specific Training” presently legal, do constitute the most effective treatment program on marketing and promotion of drugs and dissemi- available for some conditions. …. [and] the truthful [off-label] nation of information on off-label uses. information may be life saving information, or information that makes a life with a debilitating condition more comfort- Schering Sales able.” Id. at 73-74.4 The First Amendment equally bars off- In August 2006, Schering Sales Corporation (“Schering”) label criminal prosecutions. pled guilty to charges of conspiracy to make false statements District of Massachusetts to the FDA to avoid FDA scrutiny of Schering’s off-label promotion of Temodar and Intron A, in violation of 18 U.S.C. The U.S. Attorney’s Office for the District of Massachusetts § 371. The Information alleged that Schering engaged in is a national powerhouse in the area of healthcare fraud widespread marketing of drugs for unapproved uses. Yet, no prosecution.5 Yet, cases involving facts that arguably could criminal charges were filed under 21 U.S.C. §§ 331(d), support charges of off-label promotion have largely been 333(a) (2) and 355(a). Under the plea agreement, Schering resolved through civil dispositions, deferred prosecution paid a $180 million fine and its preexisting CIA was expanded agreements or guilty pleas to lesser criminal charges. to incorporate off-label promotion. Through such an approach, drug companies have not faced a bar from participating in government-funded programs.6

Boston Bar Journal • November/December 2007 19 Serono Laboratories 2 The most notable exception permits the dissemination of In October 2005, Serono Laboratories, Inc. (“Serono”) pled off-label information in response to unsolicited requests for guilty to conspiring with a medical device manufacturer to information from physicians. 21 U.S.C.A. § 360aaa-6; 21 C.F.R. § 99.1(b). market computer software devices for unapproved uses to

increase the market for its drug, Serostim, as well as unre- 3 A recent Boston Globe article reported: “Once the FDA lated charges of offering illegal kickbacks. Serono paid $704 approves a drug for adults, manufacturers seldom retest it in million in criminal fines and civil payments. Although a civil children. Physicians, however, frequently treat children with settlement agreement alleged that Serono promoted the sale drugs approved for adults -- a practice called off-label and use of Serostim for off-label uses, no criminal charges prescribing -- without knowing the proper dosing or whether were filed. Serono entered into a five-year CIA that included the therapies even work in children.” Diedtra Henderson, Risperdal Use OK’d in Treating Children, Boston Globe, obligations countering off-label promotion. August 23, 2007.

Warner-Lambert 4 On appeal, the FDA opined that the challenged provisions In May 2004, Warner-Lambert pled guilty to charges of in the FDAMA were simply a “safe harbor” ensuring that promoting Neurontin for unapproved uses in violation of certain forms of conduct would not be used against manufac- 21 U.S.C. § § 331(a), 331(d), 333(a), 352(f)(1) and 355. The turers in misbranding enforcement actions, and that the Information alleged that Warner-Lambert promoted these provisions did not independently authorize the FDA to uses despite the lack of clinically controlled data demonstrat- prohibit or to sanction speech. The Court of Appeals vacated the District Court’s decision without reaching the merits of ing Neurontin’s efficacy in treating these conditions and the the First Amendment holding, based on the lack of a constitu- FDA’s rejection of Warner-Lambert’s application for one tional controversy in light of the FDA’s interpretation of the indication. Warner-Lambert’s parent company, Pfizer, paid FDAMA. Washington Legal Foundation v. Henney, 202 F.3d $240 million in criminal fines and its existing CIA was 331, 335-36 (D.C. Cir. 2000). expanded to include requirements relating to its marketing activities and dissemination of off-label information. 5 In 2003, this health care fraud unit led the nation in healthcare fraud recoveries. Robert S. Bennett and David M. Conclusion Medearis, Health Care Fraud: Recent Developments and Timeless Advice, Texas Medicine, October, 2003. And in June Strong arguments oppose criminal prosecution of off-label 2005, the Wall Street Journal highlighted the Office’s role in drug promotion. An open debate continues as to whether prosecuting healthcare fraud. Harvey A. Silverglate, Bean- society’s interests are better served by permitting such town Shakedown, Will the Justice Department Drive Health- promotion, rather than prosecuting it. The lack of a single Care Business Out of Boston?, The Wall Street Journal, June statute directly criminalizing such conduct further weakens 24, 2005. any criminal case. First Amendment barriers to such enforce- 6 ment remain. Although the U.S. Attorney’s Office for the 42 U.S.C. § 1320a-7(a) and corresponding regulations, 42 C.F.R. § 1001.101, provide for mandatory exclusion of District of Massachusetts has extracted significant fines and certain individuals and entities from participation in Medicare stringent CIA requirements, it has demonstrated limited and State health care programs for (1) convictions of prosecutorial interest in seeking felony criminal charges for program-related crimes; (2) convictions relating to patient off-label drug promotion.” abuse; (3) felony convictions relating to health care fraud; and (4) felony convictions relating to controlled substances. 42 U.S.C. § 1320a-7(b) and corresponding regulations, 42 C.F.R. § 1001.201, provide for permissive exclusion of Endnotes certain individuals and entities from participation in Medicare and State health care programs for enumerated violations. 1 The Boston Globe reported that “[f]rom 2002 to 2004, newly approved drugs took an average of 8.5 years to work 7 The OIG often negotiates CIAs with healthcare organiza- their way through clinical trials to earn FDA approval.” Dietra tions as part of the settlement of its investigations. Under a Henderson, FDA Rules Aim to Speed Drug Tests and Trim CIA, the organization consents to certain operational obliga- Costs, Boston Globe, Jan. 13, 2006. tions in exchange for the OIG foregoing other penalties.

20 Boston Bar Journal • November/December 2007 BBA Update

Justice Not for All: The Time for Change is Now

The BBA and Sentencing Reform “I know we can have safer neighborhoods. But it will The BBA’s story began in 1991 when the BBA Task Force take more community-based patrols, after-school and on Justice and the Crime and Justice Foundation issued a joint report entitled The Crisis in Corrections and Sentencing in enrichment programs, summer job and volunteer Massachusetts, which provided a detailed overview of the opportunities for young people, training and pre- organization and functionality of our system of addressing release preparation for inmates, and sensible reform crime. Two primary recommendations of that report were the creation of a Sentencing Commission and the development of of both CORI and sentencing. Let’s reach for that.” a set of guidelines for judges to use in sentencing persons convicted of crimes. — Governor Deval L. Patrick Inaugural Address “The Task Force, in no uncertain State House, Boston, January 4, 2007 terms, called for the repeal of mandatory sentencing, particularly the harsh he spirit of the Boston Bar Association is one that never and ineffective mandatory drug sentenc- shies away from the long-term challenging issues that ing laws; and for the establishment of a T help promote its mission to facilite access to justice, to ‘tough, effective, and cost efficient’ serve the community at large. For almost two decades, the system of intermediate sanctions, in lieu BBA has fostered discussion of the strengths and weaknesses of incarceration for non violent offend- of the Commonwealth’s criminal justice system, especially ers,” recalls Bill Leahy, Chief Counsel for the Committee for Public Counsel with regard to sentencing reform and prisoner re-entry. William J. Leahy Services, a member of the 1991 BBA In the coming months, the BBA will renew these efforts by Task Force on Justice and a former BBA joining a coalition including the Massachusetts Bar Associa- Council member. tion, the Committee for Public Council Services, the Crime and Justice Foundation, Families Against Mandatory Mini- Marty Rosenthal, a defense lawyer mums, and Governor Patrick’s Anti-Crime Council, on which and former BBA Council member and the BBA is represented by Michael Ricciuti of K&L Gates, Co- BBA Criminal Law Section Co-Chair, Chair of the BBA’s Criminal Law Section. As BBA President has actively pursued sentencing reform Tony Doniger notes, “Sentencing and CORI reform are for three decades, authoring the 1990 integral pieces of the BBA mission. They are clearly social BBA Resolution Opposing Mandatory Sentencing. “After three decades of justice issues that promote fiscal responsibility, public safety Marty Rosenthal and access to justice for all.” steadily mounting evidence of the flaws of mandatory minimum sentences, culminating in the 2004 report of the Harshbarger Commis- sion on Corrections Reform, on which I served, this practice, at long last, is one whose time has expired in Massachusetts— as it already has in many other states. Among the encouraging tea leaves is the obvious high priority of the organized bar, including the BBA, which for many years has been centrally involved in this effort.

Immediate BBA past President Jack Cinque- grana was a member of the BBA 1991 Task Force on Justice as well as the Sentencing Commission, and worked to advocate for sentencing reform. BBA President Tony Doniger and President-Elect Kathy Weinman are both committed to continuing these efforts.”

Rep. Eugene L. O’Flaherty, House Chairman of the Joint Committee on the Judiciary, with BBA President Tony Doniger and BBA Council member Randy Gioia, prior to addressing the Council at the October 2007 meeting.

Boston Bar Journal • November/December 2007 21 BBA Update

Since 1991, the BBA has testified each legislative session she added, “Because of the non-violent nature of their crimes before the Joint Committee on the Judiciary in support of and their impeccable prison records, many prisoners are likely sentencing reform. It will do so again in November. to be granted parole. Parole supervision is not a free pass. It can and often does require electronic monitoring, daily The BBA and Prisoner Re-entry reporting, urine testing, gainful employment and appropriate The BBA strongly believes that any sentencing reform housing. It also saves the Commonwealth significant tax package should incorporate post release supervision, but with dollars.” caution. The institution of intermediate sanctions as an option for less serious and nonviolent crimes will contribute to the The BBA and CORI Reform rehabilitation of offenders and reduction of future crime rates. In addition to greater use of parole, the BBA believes that Further, the use of appropriate intermediate sanctions will also CORI reform legislation is an essential component for the mean that public safety dollars can be allocated rationally to successful and safe reintegration of prior offenders into serve the goals of reducing crime in all Massachusetts society. We need to assist those who have been mistakenly communities. identified as offenders, or against whom charges have been dismissed. We need to clarify their records in a prompt and In 2002, the BBA’s Task Force on Parole and Community effective manner, to allow for the opportunity to seal their Reintegration, issued a report which found that parole can be records within a reasonable amount of time, and to purge a valuable tool for making communities safer and reducing those juvenile records that bear no meaningful relevance to recidivism. Unfortunately the public perception of parole is their ability to become productive and well-adjusted adults. that parole benefits only the offender—not society—and that when a prisoner is paroled, society is being soft on crime. The In the fall of 2006, the BBA formed the Study Group on result is that parole is under-utilized. CORI Reform under Jack Cinquegrana. Chaired by Jennifer Tucker, Co-Chair of the BBA’s Labor & Employment Section, The Task Force found that parole rates dropped signifi- the group consisted of experienced lawyers in various practice cantly from 1990 to 2000. Because of declining rates of parole, areas, ranging from criminal and civil liberties law to employ- more and more offenders are simply “wrapping up” their ment and health law. Others with substantial experience sentences and being released onto the streets with no supervi- dealing with the CORI system also participated, including the sion or the benefit of re-entry programs. The BBA will Suffolk County District Attorney’s Office, the Committee for continue to educate the public that parole enhances public Public Counsel Services, the Boston Police Dept., the City of safety because it allows offenders a chance to reacquaint Boston’s Legal Dept., Youth Opportunity Boston, and Mass. themselves with the duties, responsibilities, and freedoms Correctional Legal Services. exercised outside of confinement, while under supervision. This fall, the BBA adopted 12 basic principles developed by Perhaps most troubling is that many statutes that deal with the group covering four categories that meaningful CORI drug crimes carry minimum mandatory sentences regardless reform demands: Accuracy, Access, Sealing, and Juvenile of the offender’s criminal activity and past record. Last spring, Justice. “Successful re-entry is a critical component of the BBA testified in support of a bill that would allow a person preventing recidivism,” said BBA President Tony Doniger. “It serving a mandatory minimum sentence for a drug violation is no secret that many employers find it easier to hire some- to be parole eligible after serving two thirds of their maximum one without a smudge on his or her record than to deal with sentence. By offering the parole option for non-violent drug trying to understand CORI. The principles adopted by the offenders, the system can transition eligible inmate candidates BBA provide an important road map for those on all sides of into the community and save our prison beds and costs for the the issue. Where CORI is concerned, nothing is more violent offenders who pose a real dangerous than inertia.” threat to society.

Leslie Walker, Co-Chair of the BBA Conclusion Delivery of Legal Services Section The BBA joins the community in wanting to see a criminal and Executive Director of MA justice system that inspires public confidence, with the means Correctional Legal Services offered and direction to sentence offenders in a rational, consistent, an explanation of the problem. and effective manner—a system that will ultimately enhance “Prisons are grossly overcrowded. public safety, promote fiscal responsibility and access to The most overcrowded unit in the justice for all. state is at MCI Framingham where For more information on BBA public policy, please contact Leslie Walker the Awaiting Trial Unit is at 360% of Deborah Gibbs, Director of Government Relations, at (617) capacity. Massachusetts cannot build 778-1942 or by e-mail to [email protected]. its way out of this unsafe nightmare. The reform of mandatory minimums would provide much of the relief that is needed.” With regard to parole eligibility for non-violent drug offenses,

22 Boston Bar Journal • November/December 2007 2007-2008 Public Interest Leaders The Boston Bar Association is strongly committed to the Massachusetts Legislature, and include a solo practitioner. developing the next generation of civic leaders through its Nominated by their employers for their demonstrated commit- prestigious Public Interest Leadership Program (PILP). In ment to public service and pro bono work, the highly select and September, BBA President Tony Doniger named fifteen diverse membership ensures that participants benefit from a lawyers as the newest members of the leadership training vast array of experiences and perspectives, and that the program, now in its fifth year. The program is for lawyers who message of the program will be spread across the city of have practiced law for fewer than 10 years, and fosters the Boston and its legal community. professional relationships that are essential to success. The BBA warmly welcomes this year’s Public Interest This year’s PILP members graduated from eight different Leaders: law schools and represent 11 law firms, eight of which are new to the program. They also come from legal services agencies, *BBA Sponsor Firms and Organizations

Claire Bishop Abely Aaron J. Agulnek Jennifer A. Cardello Bryan S. Conley Foley & Lardner LLP* Massachusetts State Senate Foley Hoag LLP* Wilmer Cutler Pickering Hale and Dorr LLP*

Sherley E. Cruz Kate Grennan Dara Z. Kesselheim Rachel A. Lipton Greater Boston Legal Services* AIDS Action Committee of MA Choate, Hall & Stewart LLP* Brown Rudnick Berlack Israels LLP*

Bonnie Schroeder McGuire Jennifer M. Ryan Noah C. Shaw Heidsha Sheldon, Ropes & Gray LLP* Dwyer & Collora, LLP* Mintz Levin Cohn Ferris Seyfarth Shaw LLP* Glovsky & Popeo, P.C.*

Stephen D. Silveri Christopher D. Strang Suleyken D. Walker Law Office of Stephen D. Silveri Corwin & Corwin LLP Meehan, Boyle, Black & Bogdanow

Boston Bar Journal • November/December 2007 23 BBA Update

Public Interest Alumni/ae Class Notes

A key benefit of participating in PILP is that members become recently checked in with Public Interest alums, we were happy to part of a growing alumni/ae network, where attorneys can benefit find that they are an active group, in no small part because of the from the experience and leadership of their predecessors and experiences they had had and the people they were able to meet colleagues. Since going through the program, alumni have during their year in PILP. assumed leadership roles in BBA Sections and Committees and For more information about the Public Interest Leadership on local town boards, educational councils, and local and national Program, contact Paul Dullea at (617) 778-1934, or pdullea@ public service organizations. When the Boston Bar Journal bostonbar.org.

Class of 2003-2004: Kevin B. Currid, U.S. Securities and Exchange Commission “PILP was a very rewarding experience that continues to pay dividends. It allowed me to work with the city’s most talented, committed and civic-minded lawyers and solidified my commitment to the BBA. I continue to be active in the BBA and today I serve on the BBA’s Public Service Committee. I recently joined the Boston Regional Office of the United States Securities and Exchange Commission as an enforcement attorney after eight years as a litigation associate at Foley Hoag LLP, where I focused on securities litigation and accountants’ professional liability.”

Kathleen Cloherty Henry, Choate, Hall & Stewart LLP* “I developed professional and personal relationships with my fellow PILP members, who serve as a source of support, and with whom I collaborate on projects within and outside of the BBA. I serve on the BBA’s Public Service Committee, and do pro bono work on behalf of the Political Asylum and Immigration Refugee Project. Since my days in the Program, I have had three children, and have focused my practice at Choate Hall & Stewart on insurance and reinsurance litigation and arbitration.”

Nader Mousavi, WilmerHale* “Since completing PILP, I returned to my native California as a founding member of WilmerHale’s Palo Alto office. I was just named by theSilicon Valley/San Jose Business Journal as one of the top “40 under 40” business professionals in Silicon Valley, and recently also received my firm’s Reginald Heber Smith Award for community service, given each year to one attorney in the firm for outstanding commitment/leadership in community service. I have been very involved in helping Citizen Schools—a Boston-based non-profit organization focusing on after-school education—build and establish its California operations both as a member of the California Champions Council for Citizen Schools and a Citizen Teacher for the its Mock Trial Program.”

Class of 2004-2005: Essence R. McGill, Foley Hoag LLP* “I was thrilled to have met an extraordinary group of young lawyers engaged in and committed to pro bono/ public service, and was able to energize interest in public service for my friends and colleagues. I now serve on the Boards of Directors of the Big Sister Association of Greater Boston and of the Boston Dance Alliance. I also serve on the Board of Governors for the Harvard Club of Boston. I feel that because of my participation in PILP, I have been provided with more opportunities to take leadership roles at Foley Hoag LLP both on client matters as well as in internal programs.”

Samantha Morton, Medical-Legal Partnership for Children at Boston Medical Center “The Program was invaluable because it introduced me to so many experienced and emerging public servants, who were full of passion and creativity and from whom I learned a great deal. More importantly, having had the opportunity to build relationships and share ideas with my PILP contemporaries (and later PILP generations) has created valuable strategic opportunities for my program and the clients it serves. I currently am Deputy Director of the Medical-Legal Partnership for Children at Boston Medical Center (MLPC), which promotes child and family health through legal advocacy. Separate from my MLPC work, I am just completing a six-year term as a director and officer of the Massachusetts Alliance on Teen Pregnancy, which is dedicated to preventing adolescent pregnancy and to promoting quality services for pregnant and parenting teens and their children.”

24 Boston Bar Journal • November/December 2007 Thuy Wagner, Boston Medical Center* “I have maintained contact with many of the lawyers I met through PILP, and have called on them numerous times for help with specific cases or with questions about particular issues. The PILP lawyers have involved me in events and organizations that I otherwise might not have known about. After completing my PILP year, I served a one-year term on the BBA’s Public Service Committee, have co-chaired several seminars with the Association of Corporate Counsel (ACC), and am serving on ACC’s Diversity Committee and on the Council of the Trustees of Reservation. For the next issue of the BBA Health Law Reporter, I am interviewing Senator Dianne Wilkerson and Representative Peter Koutoujian about their efforts to eliminate racial and ethnic health disparities. I feel that PILP has introduced me to the incredibly active and warm BBA family—probably the most important professional connection I have made!” Class of 2005-2006: Manisha Bhatt, Greater Boston Legal Services* “I am very happy to have learned about the BBF and the BBA’s many programs and Sections through PILP. I am proud that I am a Public Interest Leader and a member of a nationally recognized organization. Though I do practice public interest law, PILP gave me the motivation to explore other arenas where I can use my skills as an attorney to make in difference in my community. I have been appointed to the Board of Editors of the Boston Bar Journal, and have made connections with diverse group of attorneys from all different practice areas. Having interacted with attorneys outside of my practice area, gaining exposure to different areas of law and different ways of thinking has enabled me to become a better lawyer.”

Ed Hale, Greenberg Traurig, LLP* “Becoming a part of the ever-growing network of PILP attorneys has been one of the greatest benefits of my participation in PILP. My connections with PILP alums have been some of the most valuable of my career. Learning about the experiences of other Program participants inspired me to become more involved in my community. Since participating in PILP, I have joined the Board of Directors of the Crispus Attucks Children’s Center in Dorchester, Massachusetts. I continue to volunteer as an attorney teacher in the Citizen Schools/ Discovering Justice mock trial program for elementary and junior high school students, and I now perform pro bono legal work through the Volunteer Lawyers Project.”

Chris Morrison, Hanify & King, P.C.* “PILP provided me with a unique opportunity to become more engaged in the Bar, giving me an ‘insiders view’ of the BBA, and demonstrating to young lawyers how important it is to remain engaged with the BBA and BBF. I gained a better understanding of practice areas and needs outside of Hanify & King, and forged lasting professional relationships and friendships. This year, I was appointed to the Mental Health Legal Advisors Committee by the SJC, and last year, I was re-elected to the Norwood School Committee and appointed to the Board of Trustees of MassBay Community College by the Governor.”

Randall E. Ravitz, Massachusetts Attorney General’s Office* “I have benefited from PILP in several ways. During my year in PILP, I learned about community organizing and leadership, Boston-area politics, and ensuring access to justice, all while making good friends whom I still keep in touch with and support. Because of the warm welcome the BBA gave me after the year concluded, I have served as Co-Chair of the BBA’s Civil Rights & Civil Liberties Section and Co-Chair of the BBA’s Litigation Public Policy Committee. I also became a board member of the Massachusetts Voter Education Network, Inc. (“MassVOTE”), a non-profit organization that I learned of through PILP. My participation in PILP has led me to act as a liaison between my office and organized bar groups on issues of mutual interest, which I hope will enable me to contribute more to both my office and the organized bar.” Class of 2006-2007: Phil Catanzano, U.S. Department of Education, Office for Civil Rights “The friendships I forged with my fellow PILP classmates and with members of the BBA were the most obvious benefits of the program, but I also got a better sense of the shared goals and desires of attorneys from completely different areas of the legal practice spectrum. Big firm attorneys are stereotypically painted with the single broad brush stroke of being very corporate profit-oriented, but these same attorneys bring a different—and very valuable—viewpoint to their charitable/pro bono work. And it’s a two-way street; public practitioners can demonstrate to private practitioners that sometimes results can be gotten short of drawn-out litigation. I moved from a large firm to a government agency during my PILP year, so this was something I paid a good deal of attention to. After my PILP tenure ended, I will begin serving on the Steering Committee of the BBA’s Civil Rights & Civil Liberties Section, and I’m interested to see how the things I learned from PILP play out in practice.”

Jeffrey Gleason, WilmerHale* “PILP was a fantastic experience for me. Not only did I get to meet the city’s current leaders in pro bono services, but I had the opportunity to get to know many of Boston’s future public service leaders in my PILP class. Paul Dullea did a great job introducing us to the numerous efforts being made by attorneys around the city to serve the public good. I look forward to working with Paul and my fellow PILP alums on similar projects in the future.”

Boston Bar Journal • November/December 2007 25 BBF News

Among the Celebrants at the 2007 John & Abigail Adams Benefit Ball…

The Boston Bar Foundation’s 2007 John & Abigail Adams Benefit Ball was a great success, raising over $580,000. Proceeds fund immediate grants to civil legal aid organizations and projects that provide critical assistance to low-income individuals in the Greater Boston area, support the Boston Bar Association’s community service and pro bono activities, and help further the philanthropic work of the Boston Bar Foundation. The BBF extends its thanks to this year’s Event Chair, Lawrence S. DiCara and the 2007 Adams Ball Event Committee, and John Chu of Chu, Ring & Hazel with Dina Chu. congratulates this year’s Public Service Award honoree, Paul Guzzi, President & CEO of the Greater Boston Chamber of Commerce. Jay McManus of the Children’s Law Center; Beth Boland of Bingham McCutchen; Josh Dohan of the Youth Advocacy Project of CPCS.

Joan Lukey of WilmerHale with Phil Stevenson.

Wm. Shaw McDermott of K&L Gates with Hope McDermott.

Stephen Nolan and Bruce Falby, both of DLA Piper; Marie Nolan; Nancy Falby.

Mary Ryan of Nutter McClennen & Fish; Julia Huston of Bromberg & Sunstein; Lisa Goodheart and Christine Netski, both of Sugarman Rogers Barshak & Cohen.

Jaqueline Taylor of PAREXEL International Corporation with Fred Alvaro, Partner-in-Charge, Boston Office, Adorno & Yoss.

26 Boston Bar Journal • November/December 2007 Anthony Froio, Managing Partner, Robins, Kaplan, Miller & Ciresi, with Stephanie Froio.

BBA President Tony Doniger; Liza Lunt; Judge Wilbur Edwards.

Wayne Dunbar; BBF President Sandra Jesse, Executive Vice President and Chief Legal Officer, Blue Cross Blue Shield of Massachusetts; Beth Boland of Bingham McCutchen; Cameron Kerry of Mintz Levin Cohn Ferris Glovsky and Popeo; BBA President-Elect Kathy Weinman of Dwyer & Collora.

Lisa McNamara; Frank McNamara, General Counsel, Putnam Investments; Tom Fries; Elizabeth Shea Fries of Goodwin Procter.

John Donovan of Ropes & Gray; Event Chair Larry DiCara of Nixon Peabody; Theresa Spillane.

BBF President Sandra Jesse, Executive Vice President and Chief Legal Officer, Blue Cross Blue Shield of Massachusetts; 2007 Public Ron Nelson of Mintz Levin Cohn Ferris Glovsky and Service Award recipient Paul Guzzi, President & CEO, Greater Popeo; Rukhsana Nelson; Bob Wilson; Peter Zupcofska Boston Chamber of Commerce; Chief Justice Margaret Marshall of of Burns & Levinson. the Supreme Judicial Court.

Boston Bar Journal • November/December 2007 27 Pro Bono Update Pro Bono Honor Roll The Volunteer Lawyers Project of the Boston Bar Association thanks the attorneys who took pro bono cases or provided consultation during the third quarter of 2007: Corinna W. Applegate Brian Costello Todd Hammond Kim Nemirow Gabrie Safer Martin L. Aronson Polly Crozier Audrey Heidt Marshall Newman John G. Shack Pam Atkinson John Davis James C. Heigham David Nielson Robert Sherer Kenneth Augen Andrew Dennington Alexander Henlin Donald R. O’Clair Erica Shults Paula Bagger Clinton Dick Herbert Hershfang Kara O’Donnell Sonia Steele Mlanda Bashala Sara Discepolo Matthew A. Holian C. Elizabeth O’Keeffe James Sweet Lorig Basmajian Christopher M. William H Horne Harriet Onello Joseph O. Taiwo Kimberly Bender Donahue John W. Kaufmann Walter Oney Robert Thomas Arlene L. Bernstein Anne Dowd Elizabeth Kim Anthony Orlandi Matthew Tisdale Judi Berry Tom Draper Susan Klueppel Michelle Park Norah Tower Megan Bisk Elizabeth Eggert Sue-Ellen Kresh Clifford J. Parrott Margaret S. Travers Darren Braham Beth Elliot Ray Kwosich Milap Patel Karen Van Kooy Amy Bratskeir Bernard Fang Debra Lansberry Evelyn Patsos Judith Vassilovski Ricky Brown Michael J. Fencer Dmitry Lev Kevin Pechulis Devorah Vester Stephanie Bruce Rich Fields Charles Levin Sierra A. Pino Elizabeth Vining David Burgess John Adams Fiske Rachel Lipton Brendan Piper-Smyer Kenneth Vining Brian Cann Arlene J. Fothergill John Mackey Chris Powell Neil Warrenbrand Jason Carrozza Julie A. W. Fraser Robert Marshall Warren Pyle Catherine Welsh Melissa Celli Rebecca Gagne Elianna Marziani Christian A. Rivera Anderson Donna Cohen Cheryl L. Garrity Joseph Miller Elizabeth Rodgers Victoria Whelan Thomas B. Concannon Merrily S. Gerrish Thomas Monti Ellen Rosenfeld Angela Wieremann Lisa Core Howard I. Goldstein Leah Moore Victoria C. Rothbaum Marianna Yang Christopher Claudia Gregoire Robert Morril Glenn F. Russell Frank A. Yee Courchesne Paul Ham Robin Murphy Adam Ruttenberg Arthur Young Fullfilling thePro Bono Commitment

The Lawyers Clearinghouse on Affordable Housing and Homelessness thanks the volunteers who have recently accepted pro bono cases from the Boston Bar Association Business Law Pro Bono Project and the LCAHH Community Legal Referral Program. Attorney at Law M. Machua Millett Amy L. Pugliano Keith E. Glidden Kristy Nardone, Ropes David W. Adams Jeffrey W. Sacks Weil, Gotshal & & Gray LLP; Neal Rosen, Matthew Flinders Foley & Lardner LLP Richard H. Santoro II Robert McDonnell James F. Ewing Manges LLP James G. Silva Joshua D. Skolnick Scott S. Mazur and Linda Groves, James A. Manzi Steven L. Smith Bingham McCutchen Bingham McCutchen Kevin J. Sullivan Goodwin Proctor Nutter McClennen & LLP; Carolyn Rosenthal, LLP Wilmer Cutler Goodwin Procter LLP; Abby Boxer LLP Fish LLP Susan L. Abbott Pickering Hale and Mary Ryan and Kenneth Liz A. Carcano Robert V. Kanapka Dorr LLP Stephanie F. Pare Melissa Sampson Berman, Nutter Joanne D.C. Foley Michael A Diener McClennen & Fish Joyce Hsieh Klein Hornig LLP McMorrow Jeremy E. Gauld Marie-Armide E. Storey LLP; Dylan Sanders, Philip G. Jordan Teresa M. Santalucia Henry H. Gu DLA Piper US LLP; James C. Stokes Rita M. Schwantes Roddy Klein & Ryan Timothy F. Silva Rita Schwantes, Klein Brown Rudnick Lynch, DeSimone & Gary Klein Hornig LLP; Suzanne Berlack Israels LLP Nylen LLP Ropes & Gray LLP Turner, Dechert LLP; Al Oris T. Bryant Fredrick S. Gilman Darren Braham Additional thanks to Wallis, Brown Rudnick Christopher Dunham Brad E. Moyer the following people Berlack Israels LLP. Mintz, Levin, Cohn, who helped us recruit Timothy C. Maguire Ferris, Glovsky and Yaacov P. Silberman Edwin C. Pease Jennifer K. Santos volunteers: Popeo P.C. Anne Bowie, Wilmer Finally, thank you Benjamin M. Welch Anthony E. Hubbard Heather A. Walsh Kristen A. Young Cutler Pickering Hale to Goodwin Procter Agnes Lee Sym Sheehan Phinney and Dorr LLP; Steven LLP for continuing Dechert LLP Nicolai Law Group, Bass + Green PA Cowley and Tom to host the Nonprofit Lewis A. Burleigh P.C. Mark J. Ventola Schnorr, Edward Angell Formation Seminars, Susan M. Camillo Caroline E. Nicolai Sherin and Lodgen Palmer & Dodge LLP; a joint effort of the DLA Piper US LLP Paul P. Nicolai LLP George Field, Verrill Lawyers Clearinghouse Zachary N. Coseglia Kurt A. James Dana LLP; Susan and Volunteer Lawyers Nixon Peabody LLP Finegan, Mintz, Levin, for the Arts, and to Daina I. Groskaufmanis Brian M. Busch Skadden, Arps, Brett L. Hendrickson Cohn, Ferris, Glovsky Boston Private Bank Juan A. Concepción Slate, Meagher & and Popeo, P.C.; Claire & Trust Company David G. Higgins David R. Gluck Flom LLP Anthony T. Panebianco Laporte, Foley Hoag to host additional Lee Harrington John E. Alessi LLP; James Manzi, legal workshops for Edwards Angell Kevin P. Joyce Carolyn Brenner Foley & Lardner LLP; nonprofits. Christopher P. Keefe Palmer & Dodge LLP Verrill Dana LLP Matthew Lynch and Scott John Eriksen Robert L. Kirby James F. Coffey Cornelius Moynihan, Matthew R. Frascella Matthew R. Lynch Nixon Peabody LLP;

28 Boston Bar Journal • November/December 2007

The choice of Massachusetts Attorneys.

Lawyer’s Professional USI Bertholon-Rowland Liability Insurance you is the LPL Insurance Administrator for can count on… from the Boston Bar a company you can trust! Association.

To learn more please USI Bertholon-Rowland Offers Competitive contact us at and Comprehensive Lawyer’s Professional 800-747-1018 or visit our website Liability Insurance. www.brcorp.com/bba

BBA-sponsored products for today’s legal professionals also include:

• Professional Liability

• Workers’ Comp.

• Auto, Home, & Renter’s

Prsrt Std U.S. Postage P A I D Boston, MA 16 Beacon Street Permit No. 57557 Boston, MA 02108

Bostonbarjournalnovember/December 00 a Publication of the Boston Bar Association

Bostonbarjournalnovember/December 00 a Publication of the Boston Bar Association